received by the writer of the first, in answer | likewise for plaintiff, from which latter to the first letter; and the second, on its judgment this appeal is prosecuted. face, tends to show that it was an answer to the first. which was fully proven, thereby rendering the second admissible. The fact that witness testified that the signature to the letter was not that of the purported writer did not render it inadmissible in evidence. It was shown that the purported writer had a number of clerks in his office, and it was open for the jury to infer that the letter was written by McKinstry or by some one authorized to bind him and the defendant as to the contents of the letter. If, as a matter of fact, it was not binding on the agent or the defendant, it would have been an easy matter for defendant to show it; both letters were in its possession, and were known of, and testified to, by its agents. The court properly declined to give the general affirmative charge for defendant as to the count in trover. There was evidence tending to show a conversion of the property by defendant, as claimed in this count. There was no valid objection to allowing the second count in trover to be added by amendment. It was not a departure from the original count, and was allowable under the present Code, whether the first count be in assumpsit or in case. Code 1907, § 5329. If this were not true, we are not sure that the question was properly raised in the trial court; and, if it was not so raised, it cannot be raised for the first time on appeal. Affirmed. The only error assigned is the refusal of the trial court to give the affirmative charge for defendant. It is insisted that one or more of the pleas were proven without dispute. If this be true, of course, the charge should have been given as requested. We cannot agree with counsel, however, that any one of the pleas was so proven. The pleas, of course, must be referred to the complaint, which they profess to answer. The action was for balance due for work and labor done, and for a promise to pay this balance. While it is undisputed that there was originally, between the parties, a contract to build a specified house and to pay a certain amount therefor, and that the house was not completed in accordance with this contract, it is shown that this contract was afterwards changed, at the request of the defendant, acceded to by the plaintiff, and another contract substituted therefor, and that the parties thereupon made a complete settlement and adjustment between themselves, and that this suit is for the balance in that settlement agreed on. Hence this suit is not on the original contract, as alleged in the pleas. No contract is sued on, except this promise to pay this balance, and it is conceded that the balance was not paid. It is further shown, or a part of the evidence tends to show, that the original contract was changed or abandoned at the instance and request of the defendant, and that he promised to pay this balance in con ANDERSON, MCCLELLAN, and SAYRE, sideration of the change of the contract. So JJ., concur. An action for the balance due for work and labor done and for a promise to pay this balance is not an action on the original contract, but on the promise to pay; so that pleas setting up the original contract were not proven without dispute, so as to authorize the affirmative charge for defendant. [Ed. Note.-For other cases, see Work and Labor, Cent. Dig. § 62; Dec. Dig. § 30.*] Appeal from Circuit Court, Coosa County; 8. L. Brewer, Judge. Action by R. E. Brown against W. A. Corley. From a judgment for plaintiff, defendant appeals. Affirmed. Riddle, Ellis & Kelley, for appellant. John A. Darden, for appellee. the action was not on the original contract, as alleged in the pleas. The pleas were, therefore, not proven without dispute, and the court properly refused to give the affirmative charge as requested. Affirmed. A deed of a homestead owned and occupied by a married man, not separately acknowledged by his wife as required by statute, is void. [Ed. Note. For other cases, see Acknowledgment, Cent. Dig. §§ 133-148; Dec. Dig. 25.*] 2. HOMESTEAD (8 141*) - RIGHTS OF SURVIVING WIDOW. Where a husband died, leaving a rural homestead less than 160 acres in area and less than $2,000 in value, without minor children, MAYFIELD, J. This action originated in the title vested absolutely in the surviving widow, and on her death intestate the inheritance a justice court, and there resulted in a judg-passed from her, and not from the husband. ment for plaintiff. Defendant appealed to [Ed. Note. For other cases, see Homestead, the circuit court, wherein the judgment was Cent. Dig. § 262; Dec. Dig. § 141.*] 3. EQUITY (8 358*)-EVIDENCE BEFORE COM- | and his determination of facts wholly elimiMISSIONER OBJECTIONS. nated from consideration the question of advancements made by the father, Eldridge Sims, to the children, as the title to the property in suit descended from the mother. The decree appealed from is affirmed. Affirmed. Where the note of submission did not contain any objections to the evidence offered by either side, the chancellor was not required to consider objections made before the commissioner in the taking of depositions. [Ed. Note.-For other cases, see Equity, Cent. Dig. §§ 745, 831; Dec. Dig. § 358.*1 Appeal from Chancery Court, Covington County; L. D. Gardner, Chancellor. Bill by Jacob Sims and others against John Sims. Decree for complainants, and defendant appeals. Affirmed. C. E. Reid, for appellant. Foster, Samford & Prestwood, for appellees. DOWDELL, C. J. This appeal is taken from a final decree rendered on submission of the cause on the pleadings and proof. On the state of the record before us, the main question-if not the only one presented-is one of fact. The evidence without dispute shows that the land sought to be sold for division was the homestead of the ancestor of the parties to this suit, and that he was a married man and resided thereon at the time of the execution of the purported deed offered in evidence by the respondent, John Sims. There was no separate acknowledgment by the wife to this deed, as required by the statute, and hence the deed was void. The date of the death of the ancestor, Eldridge Sims, is the principal issue of fact in the case. The complainants contend that he died on the 13th of December, 1893, while the respondent contends that he died in October or November, 1892. There were no minor heirs, and the homestead was less than 160 acres in area, not situated in a city, town, or village, and the great weight of the evidence showed that it was of less than $2,000 in value. The wife survived, and if the husband, the ancestor of these parties, died on the 13th of December, 1893, as contended by the complainants, then the title to the land vested, under the statute, absolutely in the surviving widow, the mother of these parties; and upon her death intestate, which was the case here, the inheritance passed from the mother-and not from the father -to the complainants and respondent. The testimony was in conflict as to the true date of the death of Eldridge Sims. The weight of the evidence, however, as determined by the chancellor-and we concur in his conclusion showed that event to have happened on the 13th day of December, 1893. In the note of the submission of the cause there were no objections to the evidence offered by either side, and the chancellor was not required to consider objections made before the commissioner in the taking of depositions of witnesses, when not presented to him by the note on submission. The conclusions of the chancellor on the facts are supported by a decided weight of the evidence, SIMPSON, MCCLELLAN, and MAYFIELD, JJ., concur. (165 Ala. 171) HAMBY et al. v. HAMBY et al. (Supreme Court of Alabama. Feb. 2, 1910.) 1. DOWER (§ 55*) - WIDOW AS CO-TENANT WITH HEIRS. of the deceased owner. The widow is not a co-tenant with the heirs [Ed. Note. For other cases, see Dower, Cent. Dig. § 176; Dec. Dig. § 55.*] 2. PARTITION (§ 12*)-PARTIES ENTITLED TO PARTITION. The heirs of a decedent leaving a widow surviving may not maintain partition against her. nor can they have partition pending the paramount right of the widow to quarantine, dower, or homestead. [Ed. Note.-For other cases, see Partition, Cent. Dig. §§ 45-50; Dec. Dig. § 12.*] 3. PARTITION ( 12*)-PARTIES ENTITLED TO PARTITION. Under the statute providing for compulacted to avoid mischiefs growing out of vicious sory partition among tenants in common, enassertions by co-tenants of their undoubted right to be in possession of every part of the land held in co-tenancy to the harassment of others having the same right, the co-tenants, to be entitled to partition, must be entitled to possession, and co-tenants in remainder or reversion cannot maintain partition. [Ed. Note.-For other cases, see Partition, Cent. Dig. § 48; Dec. Dig. § 12.*] 4. DOWER (8 62*) - ASSIGNMENT - DUTY OF WIDOW. The widow need not proceed for the assignment of dower but she may await the action of the heirs or the personal representative. [Ed. Note. For other cases, see Dower, Cent. Dig. § 203; Dec. Dig. § 62.*] 5. PARTITION (§ 25*)-NECESSITY OF PAYMENT OF DEBTS-SALE OF REALTY. present payment of their debts, may sell the Creditors of a decedent, entitled to the decedent's land subject to the widow's dower right, and the widow may, under Code 1907, § residue so as to vest a complete title in the pur 2647, consent to the sale of her right with the chaser, but the heirs may not invoke partition, as against the rights of the creditors, acting through the administrator, to have the lands sold for the payment of debts. Cent. Dig. § 78; Dec. Dig. § 25.*] [Ed. Note. For other cases, see Partition, 6. COURTS (§ 475*)-CONFLICTING JURISDICTION ADMINISTRATION OF ESTATES AsSIGNMENT OF DOWER-ALLOTMENT OF HOME. STEAD. The assignment of dower and the allotment of homestead are steps incident to the administration in the probate court of estates of decedents, but a decree of the probate court allotting homestead does not oust the chancery court of its jurisdiction to assume the adminis- | the probate court had undertaken to assume tration of estates. [Ed. Note.-For other cases, see Courts, Cent. Dig. 1234; Dec. Dig. § 475.*] 7. COURTS (§ 472*) - CONFLICTING JURISDICTION-ADMINISTRATION OF ESTATES. jurisdiction, and had appointed an administrator, and had allotted homestead exemption, subsequent to the filing of the bill in chancery for partition. The chancellor held the plea to be sufficient, and from his decree, the complainants have appealed. It is proper to notice some aspects of the bill. The widow is not a co-tenant with the Where, on a bill filed for that purpose, the chancery court assumes jurisdiction of the administration of an estate, all incidental questions must be there settled, and nothing can thereafter be done in the probate court. [Ed. Note.-For other cases, see Courts, Cent. | heirs, and they cannot maintain a bill for parDig. §§ 1203-1207; Dec. Dig. § 472.*] 8. COURTS (§ 475*) - CONFLICTING JURISDICTION-ADMINISTRATION OF ESTATES. A bill for partition among heirs, which proceeds on the theory that an administration of the decedent's estate is unnecessary, does not draw to the chancery court jurisdiction to administer the estate, and in the absence of an amendment setting up subsequent proceedings in the probate court undertaking to assume jurisdiction and appoint an administrator and allow the homestead exemption, and praying for a removal of the administration into the chancery court, the probate court may proceed in due course to the settlement of the estate. [Ed. Note.-For other cases, see Courts, Cent. Dig. § 1234; Dec. Dig. § 475.*] Appeal from Chancery Court, Pickens County; Thomas H. Smith, Chancellor. Suit by Frank Hamby and others against Mary Hamby and others. From a decree adjudging the sufficiency of a plea, complainants appeal. Affirmed. tition against her. Statutes for compulsory partition among tenants in common are for the purpose of avoiding the mischiefs which may grow out of vicious assertions by cotenants of their undoubted right to be in possession of every part of the lands held in co-tenancy to the harassment of others having the same right. Freeman, Co-Tenancy and Partition, § 440. To have partition the co-tenants must be entitled to possession. Co-tenants in remainder or reversion cannot maintain partitions. Nor can the heirs have partition pending the paramount right of the widow to quarantine, dower, or homestead. Nor is it either the duty or the interest of the widow to proceed for the assignment of dower. She may await the action of heirs or personal representatives. Callahan v. Nelson, 128 Ala. 671, 29 South. 555. But creditors of the deceased owner, entitled to the present payment of their debts, may have lands sold S. L. & E. E. Cox, for appellants. Curry & subject to the widow's dower right, and the Robison and I. R. Hinton, for appellees. SAYRE, J. This is a bill for the partition of lands-260 acres with a prayer in the alternative for a sale for division in the event a partition cannot be had, and was filed November 21, 1907. The land had been owned and occupied by A. P. Hamby, now deceased, and the parties are his heirs at law and his widow, the last named being made a party defendant to the bill, with the allegation that the interests of both complainants and defendants are subject to her right of dower. The bill has nothing to say in respect to the possession of the lands subsequent to the death of Hamby, nor anything in respect to the widow's claim or possession of homestead. It is alleged that decedent died March 20, 1907, owing no debts, and that there had been no administration of his estate. On November 2, 1908, a pleading was filed by all the defendants, which the parties and the chancellor seem to have concurred in treating as a single plea. In three paragraphs this plea set up in bar of the bill (1) that certain 160 acres of the land had been set apart by the probate court as a homestead exemption to the widow; (2) that the remainder of the tract was subject to the quarantine and dower rights of the widow; and (3) that the estate of Hamby, deceased, owed debts, for the payment of which there was no personal estate, and that an administrator had been appointed. We take this plea to mean that widow may consent that her dower interest be sold with the residue of the land, so as to vest a complete title in the purchaser. Code, § 2647. The assignment of dower and the allotment of homestead are both steps appropriately incident to the administration of the estates of decedents in the probate court. If, on a bill filed for that purpose, the chancery court assumes jurisdiction of the administration of an estate, all incidental questions may and must be there settled, and nothing can thereafter be done in the probate court. But a bill for partition among heirs does not necessarily involve the administration of the estate of the deceased owner, nor does it necessarily draw to the chancery court jurisdiction of such administration. And the bill in the case at hand not only does not seek to have the estate of the deceased owner administered in the chancery court, but distinctly proceeds upon the theory that no administration is necessary. The probate court acquired jurisdiction of the estate, by appropriate proceedings to that end as we must presume, and, until that jurisdiction was ousted by a decree of the chancery court assuming jurisdiction, the probate court might proceed in due course to the appointment of an administrator and the settlement of the estate, and the determination of incidental questions, including the assignment of dower and homestead. The decree of the probate court allotting homestead had no effect to oust the jurisdic tion of the chancery court. As against the widow's quarantine, dower, or homestead exemptions, and as against the rights of creditors, acting through the administrator, to have the lands sold for the payment of debts, the jurisdiction of the chancery court to award partition among the heirs was defectively invoked in the beginning. The plea setting up facts which destroyed the right of the complainants to have partition presently decreed in the chancery court was properly adjudg ed to be sufficient. | 2. HOMICIDE (§ 300*) - Self-Defense — InSTRUCTIONS BELIEF OF PERIL-HONESTY. refused, as pretermitting the honesty of defendInstructions on self-defense were properly ant's belief of his peril at the time he fired the fatal shot. [Ed. Note. For other cases, see Homicide, Cent. Dig. 88 614-632; Dec. Dig. § 300.*] 3. CRIMINAL LAW (§ 759*) — INSTRUCTIONS FLIGHT. An instruction that if the jury believed that defendant did not willfully, deliberately, and premeditatedly shoot deceased with malice, then the fact of his flight would not be a circumstance to be weighed against him, was er roneous. Law, Cent. Dig. § 1793; Dec. Dig. § 759.*] Appeal from City Court of Montgomery; Albert Green was convicted of manslaughter, and he appeals. Affirmed. We may remark that the difficulties which will probably arise out of the present status of this cause may be obviated, and the principle declared in Baker v. Mitchell, 109 Ala. 490, 20 South. 40, and Tygh v. Dolan, 95 Ala. 269, 10 South. 837, observed, by an amendment setting up the proceedings in the probate court, and praying a removal of the administration so begun into the chancery court where all questions may be settled. Such an The following charges were refused to the amendment will also obviate the plea. Or, defendant: "(4) If the jury believe from the in the absence of such an amendment, the evidence that the defendant, before firing the plea must be sustained and the administra-fatal shot, was being pursued by the deceased tion allowed to proceed in the probate court. If the administration should proceed to a conclusion in that court without a sale of the lands for division partition may then be had of such of the lands as remain after the allotment of homestead and the assignment of dower, by an independent proceeding in either court. Affirmed. with a razor, and that she had previously cut him with it, and that he fired the fatal shot under circumstances which were to a reasonable mind sufficient to create the belief that he was about to be again cut by her with a razor, and that as a consequence he would suffer great bodily harm or death, then they must find him not guilty, providing he was free from fault in bringing on the difficulty. (5) If the jury believe from the evidence that DOWDELL, C. J., and ANDERSON and the defendant did not willfully, deliberately, MAYFIELD, JJ., concur. (165 Ala. 79) GREEN v. STATE. (Supreme Court of Alabama. Jan. 20, 1910.) 1. CRIMINAL LAW (§ 807*)—ARGUMENTATIVE INSTRUCTIONS. In a prosecution for homicide, an instruction that the jury might consider the size of deceased as a circumstance relative to the amount of force used by defendant to save his own life, if they believed that deceased had cut defendant with a razor and was pursuing him with the same; that deceased could make but one dying declaration, and that if such declaration is described by the state's witnesses, as to the manner in which defendant shot deceased, differently, then that is a circumstance tending to impeach the testimony of such witnesses as to what deceased said as showing she was killed in the manner in which she claimed to have been killed; and if the jury believed that state's witness A. did not corroborate or substantiate the testimony of S. A. as to the manner in which the killing took place, then that was a circumstance tending to impeach the testimony of such witnesses, as it would be impossible to say which of them detailed the alleged dying declaration, as it occurred, if in fact it did occur, were objectionable as argumentative. [Ed. Note.-For other cases, see Criminal Law. Cent. Dig. §§ 1805, 1959, 1960; Dec. Dig. $ 807.*1 premeditatedly, shoot Martha Garner with malice, then the fact of his flight would not be a circumstance to be weighed against him. (6) The court charges the jury that they may take into consideration the size of the deceased, and her weight, as a circumstance for their consideration as to the amount of force necessary to be used by the defendant in order to save his own life, if they believe from the evidence that she had cut him with a razor, and was pursuing him with the same razor. (7) If the jury believe from the evidence that the defendant just previous to the firing of the fatal shot had been cut by the deceased with a razor, and that she was following him in a threatening attitude, indicative of cutting him again with a razor, and inflicting upon him great bodily harm, then he had the right to anticipate such an assault, and fire, providing he was free from fault in bringing on said difficulty, and could not have retreated without increasing his peril. (8) If the jury believe from the evidence that the defendant was about to leave the company of the deceased, and that she believed he was going to visit another woman, and through jealousy or any other cause attacked the defendant with a deadly weapon, and that the attack was of such a character that it produced on his mind a reasonable apprehension of great bodily harm, and that he fired, not with a previously formed design to take her life, but with a view of preserving his own, then in that event he would not be guilty, providing there was no reasonable room of escaping the threatening injury, except by increasing his peril, and, further, that he did not provoke or bring on the difficulty. (9) The court charges the jury that a deceased can make but one dying declaration, and if such dying declaration is described by the state's witnesses, as to the manner in which the defendant shot the deceased, differently, then this is a circumstance tending to impeach the testimony of said witnesses as to what the deceased said as to how she was killed, and the manner in which she claimed to be killed. (10) If the jury believe from the evidence that the witness for the state Eliza Allen does not corroborate or substantiate the testimony of Sally Ashley, or the testimony of said last witness does not corroborate or substantiate the testimony of the said Eliza, as to the manner in which the killing took place, then this is a circumstance tending to impeach the testimony of both of said witnesses, as it would be impossible to say which of said witnesses detailed said alleged dying declaration as it occurred, if in fact it did occur." (165 Ala. 225) DEES v. SELF BROS. (Supreme Court of Alabama. Jan. 20, 1910.) 1. LOGS AND LOGGING (§ 3*)-SALE OF STANDING TIMBER-ACTION FOR PRICE-EVIDENCE. In an action to recover for pine timber to show that it was sold to defendant individualsold defendant, where plaintiff's evidence tended ly, but defendant denied making the purchase on his own account and stated that he was cut ting and hauling it for another, it was immaterial how much defendant was getting for cutting and hauling the timber. [Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. § 12; Dec. Dig. § 3.*] 2. ACCOUNT, ACTION ON (§ 2*)—"ACCOUNT." An "account" is a general term which covers any item of indebtedness by contract, express or implied. [Ed. Note.-For other cases, see Account, Action on, Cent. Dig. § 1; Dec. Dig. § 2.* For other definitions, see Words and Phrases, vol. 1, pp. 86-91; vol. 8, p. 7561.] 3. ASSUMPSIT, ACTION OF (§ 5*) COMMON COUNTS-CONTRACT PERFORMED IN PART. which is entire, and one has performed a part Where two parties enter into a contract of what he agreed to do, he cannot recover on the common counts, but must declare on the contract and rely upon his rights under it. Action of, Cent. Dig. § 17; Dec. Dig. § 5.*]* [Ed. Note.-For other cases, see Assumpsit, 4. ASSUMPSIT, ACTION OF (§ 5*) COMMON COUNTS-CONTRACT PERFORMED IN PART. If a party suing has partly performed a contract, and the other party has accepted the Alexander M. Garber, Atty. Gen., for the results of his work, he can recover the value State. MCCLELLAN, J. The conviction was of manslaughter in the first degree. Self-defense was the justification offered. The deceased was a woman, with whom, it seems, the prisoner had for some time associated. The only possible questions for review arise out of the refusal to defendant of special charges numbered from 4 to 10, inclusive. Those numbered 6, 9, and 10 were each argumentative, if not otherwise faulty. They were well refused. Those numbered 4, 7, and 8 each pretermitted, in hypothesis, the defendant's honesty of the belief of his peril at the time the fatal shot was fired by him. They may have other vices. That numbered 5 was variously faulty. One of its vices, to be stated, was sufficient to justify the court in its refusal. Its effect was to exclude from the jury's consideration the evidence of defendant's flight, unless the jury found from the evidence that the shooting of deceased was done willfully, deliberately, premeditatedly, and with malice. Flight is, of course, a circumstance to be considered by the jury, even on the inquiry of guilt vel non of manslaughter. 1 May. Dig. pp. 331, 332. of the same on the common counts, except where Where defendant had cut part of the pine timber purchased of plaintiff under a parol contract of sale, and no time was specified for payment, it is presumed it would be made as the timber was taken, and the contract, so far as the timber had been taken, being performed by the seller, and nothing remaining to be done but for the buyer to pay for it, the plaintiff may recover the price under the common counts without declaring on the contract, since where a contract has been performed on one side, and nothing remains to be done but the payment of the money, a recovery may be had on the com mon counts. [Ed. Note. For other cases, see Logs and Logging, Cent. Dig. § 12; Dec. Dig. § 3.*] 6. LOGS AND LOGGING (§ 3*)-SALE OF STANDING TIMBER-ACTION FOR PRICE-EVIDENCE. In an action to recover for timber cut and taken away under a parol contract of sale, giv ing defendant the right to cut and remove all the timber on certain land, paying so much per payment, so that it was presumed to be made foot therefor, where no time was specified for as the timber was taken, it was proper to refuse proof of how much timber was left standing. [Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. § 12; Dec. Dig. § 3.*] There is no error in the record, and the 7. LOGS AND LOGGING (§ 3*)—SALE OF STANDjudgment is affirmed. Affirmed. ING TIMBER-ACTION FOR PRICE-INSTRUC- Where a contract for the sale of timber was performed, with the exception that the buyer DOWDELL, C. J., and SIMPSON, and had not paid for it, in an action for the purMAYFIELD, JJ., concur. chase price upon the common counts, it was |