sold and conveyed them to the mortgagor; that the mortgagor and mortgagee were severally bona fide purchasers of the lands in controversy, without notice of the alleged conveyance to Joseph M. Hambrick.

The principal controversy in the court below was between the complainants and appellant Joseph M. Hambrick, and was directed entirely to the validity of the alleged conveyance to Joseph M. Hambrick from Alfred Hambrick of September 9, 1865.

The chancellor rendered a decree foreclosing the mortgage, ordering the sale of all the lands described in the bill, and requiring the register to put the purchaser in possession. The respondents appeal.

R. C. Brickell, Humes, Walker, Sheffey & Gorden, and D. D. Shelby, for appellants. Cabaniss & Ward, for appellees.

SOMERVILLE, J The decree, which is for the foreclosure of a mortgage, must be reversed for failure to make the mortgagee Harris a party to the foreclosure suit, he being the trustee in the mortgage, and, as such, the holder of the legal title. In such cases the trustee in whom the legal title is vested is an indispensable party, without whose presence the court will not proceed to a decree, and the objection is available at any time and in any form. Comer v. Bray, 83 Ala. 217, 3 South. Rep. 554; Prout v. Hoge, 57 Ala. 28; Lawson v. Warehouse Co., 73 Ala. 290.

We might reverse the decree in this case, and have nothing further to add, as the testimony on another trial may be different from that in the present record; but to prevent a second appeal we proceed to consider some other points raised in the argument.

The main point of controversy in the case is one as to the relative priority of titles acquired by the trustee Harris under the mortgage from Bradford Hambrick on February 7, 1881, and that acquired by Joseph M. Hambrick by his deed of September 9, 1865, from Alfred Hambrick, through whom both parties claim title.

It is contended for complainant that Harris was a bona fide purchaser of the legal title for value and without notice, and should, on this ground, be protected. The basis of this claim is that the deed of Joseph Hambrick, whatever interest it created in him, was not recorded at the time the mortgage to Harris was executed, and that neither he, nor the mortgagor, Bradford Hambrick, had any notice or knowledge of its existence. This question we need not decide. As we have said, the whole case is a controversy as to the priority of legal titles, at least according to the averments of the bill, (Lehman v. Shook, 69 Ala. 486; Code 1886, §§ 1810, 1811,) and a court of equity has no jurisdiction to try the relative merits of legal titles held by adverse litigants in such a suit. Any holder of such a title, when brought in dispute, has a constitutional right to have its validity tried by a jury in an action of ejectment, and a court of law will furnish adequate remedy for testing the relative superiority of the claimants' respective titles. In a bill to foreclose a mortgage the only proper parties are the mortgagor and the mortgagee, and those who have acquired any interests from them subsequent to the mortgage. One who claims title from a stranger, or even from the mortgagor, anterior to the date of the mortgage, should not be brought in as a party defendant. This point was directly decided in Randle v. Boyd, 73 Ala. 282, and has been several times since reaffirmed. McHan v. Ordway, 82 Ala. 463, 2 South. Rep. 276; Lyon v. Powell, 78 Ala. 351.

The objection is not one of multifariousness, but of jurisdiction as to the subject-matter, and may be raised at any time, or enforced by the court sua sponte, without formal suggestion. Lewis v. Cocks, 23 Wall. 466; Hipp v. Babin, 19 How. 278.

Reversed and remanded.

KENNEDY v. STATE.

(Supreme Court of Alabama. December 18, 1888.)

1. CRIMINAL LAW-EVIDENCE-COMPETENCY.

On a trial for murder, where the defense was that the deceased had assaulted defendant, inflicting a slight wound on his neck, the conductor of the train on which the act was committed testified that, on defendant's complaining that his throat hurt him, just after the killing, he made an examination in the night-time, using a lantern. He was asked what he used the lantern for, and answered that he used it "for all purposes, to examine tickets, money, etc." Held admissible, since, if the lantern was suitable to examine money and tickets in the dark, the jury might well infer that it was equally suitable for the examination of the alleged injury on the defendant's neck.

2. SAME.

Where the conductor was in another coach at the time of the shooting, and, upon learning of the difficulty, went into the car where it had occurred, an objection to the question proposed to the defendant, "What did he say?" was properly sustained, such conversation not constituting a part of the res gestœ.

3. WITNESS-CROSS-EXAMINATION-IMPEACHMENT.

The testimony of a witness taken before the magistrate on the preliminary investigation having been reduced to writing, the court did not err in refusing to allow him to be cross-examined as to extracts taken from the writing, with a view to impeaching him, but properly required that the entire writing should be read to the jury.1

4. SAME.

Such writing was not to be treated as original evidence, nor to be received for any other purpose than that of contradicting or impeaching the witness. 5. HOMICIDE-EVIDENCE-DYING DECLARATIONS.

A charge of the court that dying declarations were to be considered by the jury "just as though deceased had been sworn and put on the stand and testified as a witness to the words used in his dying declaration" was not erroneous.

6. SAME-MURDER.

There was no error in the charge that if the accused, when he saw the deceased on the train, on purpose, and without any circumstances of mitigation or justification, pulled out his pistol and shot deceased, this would be a willful and deliberate

murder.

7. SAME-SUDDEN PASSION-MANSLAUGHTER.

Charges were properly refused that the killing was reduced to manslaughter in the first degree, because prompted by sudden heat of passion, excited by such recent and reasonable provocation as to rebut the existence of malice or formed design in the act of killing, the evidence showing that the insulting words used by the deceased to defendant had been uttered a considerable time before the killing; that the deceased made no assault whatever on the accused, and that the accused armed himself, and by his own conduct brought on the difficulty by putting himself in the way of being attacked by the deceased.

Appeal from circuit court, Escambia county; JOHN P HUBBARD, Judge. Charles Kennedy was indicted and convicted of the murder of William E. Perry, and appeals.

John Gamble, for appellant. Thos N McClellan, Atty. Gen. for the State. SOMERVILLE, J The defendant is indicted for shooting and killing one Perry with a pistol, while traveling on a train of cars between Mobile and

1On a trial for murder, a witness cannot be impeached by reading to him extracts from his testimony taken down by a magistrate, and signed by himself, as required by statute, upon a preliminary trial of one accused of the murder. His entire testimony should be exhibited or read to him. Carden v State, (Ala.) 4 South. Rep. 823; State v. Cleary, (Kan.) 19 Pac. Rep. 776. Where witnesses have made statements in writing different from those made on the trial, and the statements are shown the witnesses, who acknowledge having made them, they may be read in evidence for the purpose of impeachment. Plyer v. Insurance Co., 1 N. Y. Supp. 395. In general, on the subject of impeaching witnesses by showing previous contradictory or inconsistent statements, see Milligan v. Butcher, (Neb.) 37 N. W Rep. 596, and note, Richards v Derrick, 2 N. Y. Supp. 31; Thompson v. Gregor, (Colo.) 19 Pac. Rep. 461, and note, Welch v. Abbott, (Wis.) 40 N. W. Rep. 223; State v. Hunsaker, (Or.) 19 Pac. Rep. 605, and note; State v. Parker, (Mo.) 9 S. Ŵ. Rep. 728.

Montgomery. He claimed that the deceased had used insulting words towards him, and had assaulted him, inflicting a slight wound on his neck. The witness Elliott, upon the defendant's complaining that his throat hurt him, just after the killing, made examination of the place in the night-time, using for this purpose a lantern. He was asked by the solicitor what he was accustomed "to use the lantern for," to which he replied that he used it "for all purposes,--to see in the dark, to examine tickets and money, etc.," he being the conductor on the train. This question and answer were objected to by defendant, and the objections overruled by the court. In this we think there was no error. The uses to which the lamp was ordinarily put tended to show the uses to which it was adapted, and in this manner explained the capacity or candle-power of the light. If it was suitable to examine money and tickets in the dark, the jury might well infer that it was equally suitable for the examination of the alleged injury on the defendant's neck, which was the use to which the witness had put it, and in reference to the results of which he was undergoing examination. This witness is shown not to have been present at the time of the shooting, he being then in another coach. Upon receiving information as to the difficulty, he went into the car where it had occurred. How many minutes this was after the killing, the bill of exceptions fails to disclose. In view of this state of the evidence, the court properly sustained an objection by the state to the question proposed to the defendant, "What did he say?" The answer of the defendant, conceding that it would have reference to the homicide, is not shown to be so closely connected with the main transaction-the act of shooting-as to constitute a part of the res gesta. We cannot know from the record that it would not have been narrative merely of a by-gone transaction. To authorize the admission of such evidence it must be shown to be "contemporaneous" with the main transaction, in the sense in which we have heretofore explained this term, and upon which we need dwell at no length at this time. Railroad Co. v. Hawk, 72 Ala. 112; Dismukes v. State, 83 Ala. 287, 3 South. Rep. 671; Burns v. State, 49 Alá. 370. The same objection applies to the other questions seeking to elicit from the witness Elliott any declarations made by the defendant subsequent to the killing, and relevant to it.

The testimony of the witness McCarron, taken before the magistrate on the preliminary investigation of the facts attending the killing, having been reduced to writing, the court did not err in refusing to allow him to be crossexamined as to garbled extracts taken from the writing, with a view of contradicting or impeaching him. The court properly required that the entire writing should be shown or read to the witness and go to the jury. Wills v. State, 74 Ala. 21; Gunter's Case, 83 Ala. 96, 3 South. Rep. 600. Nor was the charge of the court to the jury erroneous, that the paper should not be treated as original evidence of the facts of the case, nor be received for any other purpose than that of contradicting or impeaching the witness. Jones v. Pelham, 84 Ala. 208, 4 South Rep. 22. The paper was entire and not severable, and it was impracticable to admit a part of it to go to the jury. The practice in such cases is to admit the entire paper, and limit its effect as evidence by a proper charge to the jury, as was done by the circuit court on the trial in this case. Wills v State, 74 Ala. 21, supra.

Exception is taken to the charge of the court touching the dying declarations of the deceased as to the circumstances of the homicide. This charge was that these declarations were to be considered by the jury "just as though deceased had been sworn and put on the stand and testified as a witness to the words used in his dying declaration." This charge is liable, as we readily see, to a construction which would render it erroneous; but it is equally capable of being so construed as to make it announce a correct proposition of law. It does not necessarily instruct the jury as to the degree of weight to be given such declarations, nor does it ignore the principle that such evidence is

to be received with caution and weighed with care in view of the fact that the accused had been deprived of the power of cross-examination; or that the circumstances of the killing may have been attended by confusion and surprise, calculated to prevent close observation; or that the passions of anger and revenge may have biased the accuracy of the statements; or other like considerations which tend to lessen the weight of this kind of evidence. The charge was especially intended to have relation to the element of weakness often urged against dying declarations by reason of the fact that the witness was not under oath at the time of the statement. The rule on this subject is thus stated by Mr. Greenleaf: "The persons whose declarations are thus admitted are considered as standing in the same situation as if they were sworn; the danger of impending death being equivalent to the sanction of an oath." 1 Greenl. Ev. § 157. And again, “A situation so solemn and so awful is considered by the law as creating an obligation equal to that which is imposed by a positive oath in a court of justice. Id. § 156. The same proposition is asserted in Sylvester v. State, 71 Ala. 18. If the charge in question was ambiguous, so as to be susceptible of the interpretation sought to be placed on it by appellant's counsel, this misleading tendency could have been corrected by an explanatory charge had it been requested by the accused. It cannot, for this reason, operate to reverse the judgment.

There is no error in the charge given by the court to the effect that if the accused, when he saw the deceased on the train, on purpose, and without any circumstances of mitigation or justification, pulled out his pistol and shot deceased, this would be a willful and deliberate murder. A pistol is a deadly weapon, from the use of which malice may be implied; and a killing with a deadly weapon, without more, is presumptively murder. If there were no circumstances of justification or excuse, the killing could not have been in self-defense. If there were no mitigating or excusing circumstances, it could not be reduced to manslaughter; nor could it have been lawful.

It is earnestly urged that the circuit court erred in refusing to give, severally, the five charges requested by the defendant, the legal effect of each of which, if given, would have been to reduce the killing from murder to manslaughter. Upon a close scrutiny of these charges, we are satisfied that their tendency was to mislead the jury. The theory upon which they are based is that the killing of deceased by the accused was reduced to the grade of manslaughter in the first degree, because prompted by sudden heat of passion, excited by recent and reasonable provocation, such as rebut the existence of malice or formed design in the act of killing.

The evidence tended to show three important facts touching this inquiry. (1) That the insulting words used by deceased to defendant had been uttered a considerable time before the killing; an interval allowing the defendant to get up and go to another coach in the train, arm himself with a pistol, and return. This may have been a sufficient interval for "cooling time” in the passions of the accused excited by the insult. (2) One phase of the evidence tended to show that the deceased made no assault whatever on the accused; that he spoke to him merely without putting his hands on him, or threatening to do so. If this be true, the provocation could not have been adequate to reduce the killing from murder to manslaughter. (3) There was evidence tending to prove that the accused armed himself, and by his own conduct brought on the difficulty by putting himself in the way of being attacked by Perry, the deceased. Each one of these charges is defective in ignoring one or more of these phases of the evidence, and in excluding its consideration from the jury as a qualifying factor in determining the nature or character of the homicide. If the defendant had time to cool under the smart of the alleged insulting words, they could not be considered in connection with any subsequent act of assault on him by the accused, and, standing alone, they could not reduce the homicide to manslaughter. So, if there was no assault and

battery by deceased on the accused, either perpetrated or threatened, the provocation could not be adequate to rebut the malice presumed from an inexcusable killing with a deadly weapon; and if the killing was executed pursuant to a previously formed design, which necessarily implies malice, it could not be imputed to spring from that sudden heat of passion which dethrones the reason. An examination of these charges show that, in view of these principles, each of them was more or less misleading, and that they all were properly refused. Stewart v. State, 78 Ala. 436; Smith v State, 83 Ala. 26, 3 South. Rep. 551; Williams v State, 83 Ala. 16, 3 South. Rep 616; Fallin v State, 83 Ala. 5, 3 South. Rep. 525; Clark, Crim. Laws, §§ 419-422. We discover no error in any of the rulings of the circuit court, and the judgment must be affirmed.

TAYLOR MANUF'G Co. v. Key.

(Supreme Court of Alabama. January 10, 1889.)

1. PRINCIPAL AND AGENT-COMMISSIONS-CONSTRUCTION OF CONTRACT.

*

By the terms of a contract between a machinery firm and its agent for the sale of machines no commissions were to be paid to the agent "on any article taken back, ** on machinery not settled for, or on any sale to irresponsible persons." The principals were not authorized to take back any machinery without the agent's consent, unless there was a necessity for it A sale of machinery was made by the agent to a person who, at the time, was solvent, and his notes were taken. After the maturity of the notes, the principals extended the indebtedness, and took sufficient security from the vendee to cover it. Afterwards the principals settled by releasing a portion of the security, and taking back the machinery. Held, that the agent could recover his commissions.

2. SAME-UNCOLLECTED NOTES.

Under a provision of such contract that commissions shall be paid to the agent on each sale proportionately out of the cash and proceeds of notes when collected, the agent cannot recover commissions on any portion of the purchase money of machinery sold for which notes were taken and which remains uncollected.

3. SAME-CONTRACT WITH VICE-PRINCIPAL.

The agent was entitled to recover under a special agreement made with the general agent of the firm, by which the latter was to sell certain articles in the territory of the former, and the agent was to receive in lieu of his commissions a named sum of money.

4. SAME-IMPLIED PROMISE TO PAY,

Where, after the termination of his contract, the agent, at the request of his principal, sold certain machinery, there was an implied contract by the latter to pay the agent what his services were reasonably worth.

5. SET-OFF AND COUNTER-CLAIM-ORDER ACCEPTED BUT NOT PAID.

Where an order given for a debt and accepted by the drawee is not paid, and is surrendered to the maker, who gives his notes in lieu thereof, the drawee cannot set off such order in an action against him by the maker.

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Mountjoy & Tomlinson, for appellant. J. W. Bush and Brooks & Vary, for appellee.

CLOPTON, J. This case was tried by the city court of Birmingham without the intervention of a jury, and, under the statute, the judgment is reviewed, without any presumptions in favor of the ruling of the court, on the evidence. Appellee seeks to recover commissions on sales of machinery and other articles of manufacture made by him as agent of appellant under three several contracts, one of which was made with Key & Baird, but the commissions accruing under this contract have been assigned to plaintiff. The contracts are substantially the same, except as to the rates of commissions, and as to these there is no controversy.

On February 25, and April 22, 1884, plaintiff made two sales of machinery to A. D. Robinson for the aggregate sum of about $1,865; $250 of which he paid in cash, and gave four notes for the deferred payments, all maturing