lines of testimony, and we need not consider that feature of the case further. We said above that the statute of limitations of 1802-20 years-has nothing to do with this case. There is, however, a presumption that any and all claims or rights of property which have been permitted to slumber without assertion or recognition for 20 years have no legal existence, or have been adjusted; and from the 20 years necessary to raise this presumption the 4 years, 8 months, and 10 days allowed on account of the war is not deducted. There is no suspension in the current of time required to perfect this presumption. Philippi v. Philippi, 61 Ala. 41; Matthews v. McDade, 72 Ala. 377.

Three charges were given to which appellant excepted, and two charges asked by him were refused, and an exception also reserved. In each case, however, the exception was general, and not to the charges separately. In this state of the record, unless all the rulings to which such general exception is reserved are faulty, nothing can be taken by the exception. Such have been our uniform rulings. Bedwell v. Bedwell, 77 Ala. 587; Railroad Co. v. Cary, 81 Ala. 159, 2 South. Rep. 443; Insurance Co. v. Moog, 81 Ala. 335, 1 South. Rep. 188; Stevenson v. Moody, 83 Ala. 418, 3 South. Rep. 695. Of the three charges given and excepted to, each and all are free from error, under the rules declared above. Of the two asked and refused, we need not consider the first. The second is diametrically opposed to our interpretation of the deed from Philyear to Shoemaker, and was rightly refused. There is no error in the record, and the judgment of the circuit court is affirmed.

HOLBERG et al. v. JAFFRAY et al.

(Supreme Court of Mississippi. November 5, 1888.)

LIMITATION OF ACTIONS-ACKNOWLEDGMENT OF DEBT-EFFECT OF ANSWER.

An admission of a debt made by defendants in their answer to a bill to set aside their assignment, and to vacate judgments confessed by them, is not such an acknowledgment as will take it out of the statute of limitations.1

Appeal from circuit court, Noxubee county; S. H. TERRAL, Judge. Assumpsit by Jaffray & Co. against Holberg and others on open account. To the plea of the statute of limitations the plaintiffs made replication of new promise. Defendants appeal from a judgment in favor of plaintiff. The defendants were merchants, and, being unable to meet all their obligations, made an assignment for the benefit of certain creditors, and confessed judgments in favor of certain creditors; whereupon plaintiffs and other creditors who were not preferred filed a bill to have the assignment vacated, and the judgments set aside, so that the assets might be subjected to their attachments. In their answer to this bill defendants admitted the debt due plaintiffs, and on this admission plaintiffs relied to take the account out of the statute of limitations. Bogle & Bogle, for appellants. Rives & Rives, for appellees.

CAMPBELL, J. The acknowledgment of the debt by the defendants in their answer in the suit in chancery was not sufficient to prevent the bar of the statute of limitations. "It was an admission made entirely diverso intuitu," (Roscoe v. Hale, 7 Gray, 274,) and that is decisive against it, while there may be other grounds of its insufficiency, not necessary to be considered, since one is enough. Reversed and remanded.

1A reply in an action to a counter-claim of goods sold, denying the counter-claim, but admitting the receipt of a large portion of the goods from one of the defendants, is not an acknowledgment as to that defendant, within the provision of the Montana statute, that "no acknowledgment shall be sufficient to take the case out of the statute of limitations, unless it is contained in some writing signed by the party to be charged;" nor does a demurrer to a complaint reciting such reply amount to an acknowledgment. Howes v. Lynde, 19 Pac. Rep. 249.

In general, as to what is a sufficient acknowledgment of a debt to remove the bar of the statute of limitations, see Spangler v. Spangler, (Pa.) 15 Atl. Rep. 436, and note; Stout v. Marshall, (Iowa,) 39 N. W. Rep. 808, and note; Drake v. Sigafoos, (Minn.) 40 N. W. Rep. 257, and note.

JOHNSON v. STATE.

(Supreme Court of Mississippi November 26, 1888.)

HOMICIDE-SELF-DEFENSE-Evidence-THREATS.

Where defendant, in a trial for murder, testified that deceased made demonstrations of attacking him with deadly weapons, when he shot him, and there was evidence of prior threats by deceased against defendant, it was error to charge that no mere spoken words by deceased justified or excused killing him, nor can threats be considered unless the jury have reasonable doubt as to who began the conflict, in which event they may consider the threats with the other evidence.1 Appeal from circuit court, Holmes county; C. H. CAMPBELL, Judge. William Johnson was indicted for the murder of one Sutherland. was a conviction, and defendant appealed.

There

Hooker & Wilson, for appellant. T. M. Miller, Atty. Gen., for the State. COOPER, J. This case furnishes another illustration of the danger of multiplying instructions in the trial of criminal causes. The facts given in evidence were conflicting, but not complicated. According to the witnesses for the state, the appellant sought deceased, when he was quietly at work upon. his own premises, and, in malice arising from an old difficulty, murdered him as he sought safety in flight. According to the testimony of the defendant and his other witnesses, it was shown that the parties had been unfriendly, and that deceased had made threats to kill appellant; that appellant, while returning to his home, was called by the deceased to his field, and, a controversy having arisen, the appellant sought to retire, when deceased made demonstrations of attacking him with deadly weapons, whereupon, and in selfdefense, he fired upon and killed him. In determining the question of guilt or innocence under such circumstances, it would seem that but little aid could be afforded by instructions. But the record shows that the state asked and obtained 15 charges. One of them is erroneous, and must result in reversing the judgment, though it probably exercised no influence in securing the verdict; we must assume that it was influential. The defendant, as we have said, testified that, without any attack having been made by him, the deceased committed an overt act evidencing an intention to assail him with a deadly weapon, and that in protection of his life he slew him. Having given testimony of an overt act by the deceased, the accused was permitted to introduce the testimony of several witnesses that, a few days before the killing, the deceased had made threats to kill the accused, and had exhibited a pistol, whieh he declared he would use in their execution. But at the instance of the state the court charged the jury that "no mere spoken words by Sutherland, previous to the time of the killing, afforded justification or excuse for his being killed; nor can any threats of Sutherland, if such were proven, be considered by the jury in making up their verdict, unless, from all the evidence, they have a reasonable doubt as to who began the conflict in which Sutherland was killed. In that event, they may consider the threats, if proven, along with all the evidence in the case.

This instruction denied to the defendant the advantage of having the previous threats of the deceased considered by the jury as a part of the whole case submitted to its decision. The jury was directed not to consider this evidence, if without it a clear conclusion could be reached as to who began the difficulty. Upon all the competent evidence introduced by the state, and a part of that for the defense, a material vital inquiry was to be solved. If the conclusion so reached should be against the accused, he was to be denied all benefit of the excluded facts. So, also, if it should be clearly in his favor; for it was to be considered by the jury only if upon the other evidence it should appear to be reasonably doubtful who began the difficulty. Upon the

1See note at end of case.

partial preliminary inquiry submitted the accused was required to go so far, and no farther; he must raise a reasonable doubt as to who was the aggressor to entitle him to have the evidence of threats considered. But if he should go so far as to solve the doubt thus raised, though favorably to himself, the evidence was to be again ignored. Evidence of previous uncommunicated threats is admissible in cases where it is doubtful who began the difficulty, as tending to solve the doubt in favor of the accused by showing a disposition by the deceased to make the attack. It is probable that the error has arisen in this case from a misconception of the meaning of the text writers who announce that the evidence is only admissible in doubtful cases. But the question is one of competency of evidence, and not of its weight. The doubt exists in the case as developed before the jury, not in it as considered by the jury. If on a trial for murder A. swears that the accused, and B. that the deceased, was the aggressor, the killing is of doubtful origin, within the rule, though the jury should on final consideration believe A. and disbelieve B. The court, which must pronounce upon the competency of the evidence, is not permitted to pass upon the credibility of the witnesses. It must admit or reject the evidence without knowing to which witnesses credence will be given by the jury. When evidence has been offered tending to prove that the deceased was the aggressor, then, though there may be a conflict of testimony on the point, evidence of previous (though uncommunicated) threats is to be admitted as supporting the other evidence. Johnson v. State, 54 Miss. 430; Wiggins v. People, 93 U. S. 465; Keener's Case, 18 Ga. 194; Arnold's Case, 15 Cal. 476; Hawthorne v. State, 61 Miss. 749. But it is not true that such evidence is not admissible if it be clearly shown that the deceased, and not the accused, was the aggressor. If that fact be established the evidence is competent to interpret the act and motive of the accused. It is then valuable to determine the violence of the attack, and the purpose with which it was made. An act meaningless when performed by one having no grudge or hatred to another may be fraught with deadly significance under other circumstances, and may be the overt act indicating a purpose to kill that will warrant a resort to means of self-defense by the party threatened. Judgment reversed.

NOTE.

HOMICIDE-EVIDENCE-THREATS. Threats of personal injuries, or against the life, will not justify the taking of the life of the party making them, when he is doing nothing to put such threats into execution. Gilmore v. People, (Ill.) 15 N. E. Rep. 758. and note. See, also, State v. Rider, (Mo.) 8 S. W. Rep. 723; Binfield v. State, (Neb.) 19 N. W. Rep. 607; Territory v. Halliday, (Utah,) 17 Pac. Rep. 118. On trials for murder it is always competent to show the conduct and feelings of defendant towards deceased; and evidence of previous threats and attempts to kill his victim, and of ill feeling between the parties, is always admissible. People v. Jones, (N. Y.) 2 N. E. Rep. 49; State v. McKinney, (Kan.) 3 Pac. Rep. 356; State v. McCahill, (Iowa,) 33 N. W. Rep. 599; Howard v. State, (Tex.) 8 S. W. Rep. 929; Schoolcraft v. People, (Ill.) 7 N. E. Rep. 649; White v. Territory, (Wash. T.) 19 Pac. Rep. 37; Westbrook v. People, (Ill.) 18 N. E. Rep. 304; Lawrence v. State, (Ala.) ante, 33. As a general rule, threats made by defendant, prior to the murder, to kill some person other than deceased, are not admissible in evidence against him, Carr v. State, (Neb.) 37 N. W. Rep. 630; but on the trial for murder of a successful suitor of a lady, who had rejected defendant, evidence that the latter had threatened to kill any one else whose company the lady received, is admissible, Brown v. State, (Ind.) 5 N. E. Rep. 900. Evidence of threats made by accused against deceased is admissible, although accused was drunk at the time of making the threats. Smith v. Com., (Ky.) 4 S. W. Rep. 798.

An instruction that uncommunicated threats of deceased are only valuable as tending to show his feelings towards defendant at the time of their encounter, and whether or not the deceased was the first assailant, or so acted at the time of the shooting as to induce in defendant's mind an honest belief that deceased intended to kill him, or do him great bodily harm, and that communicated threats are also valuable for the same purpose, and as tending to throw light on defendant's state of mind at and just before the shooting, and that in shooting his act was not malicious, is proper. White v. Territory. supra.

KING. STATE.

(Supreme Court of Mississippi. December 3, 1888.)

1. HOMICIDE-SELF-DEFENSE-EVIDENCE-THREATS.

Where it appears on a trial for murder that deceased had threatened to kill defendant, to whom the threats had been communicated; that deceased was a violent and dangerous man; and that in the quarrel that resulted in the homicide deceased said, "I will kill you," and put his hand to his pocket as if to draw his pistol, when defendant shot him,-it is admissible to show that deceased habitually went armed, and that defendant knew it.

2. SAME-EVIDENCE-CHARACTER OF DECEASED-PREVIOUS QUARRELS.

Evidence that deceased had frequently engaged in fights in which he used deadly weapons was properly excluded.

3. SAME DECLARATIONS OF DEFENDANT-RES GESTE.

The declarations of defendant directly after the shooting, as to why he had shot deceased, are not part of the res gestæ, and are inadmissible.

Appeal from circuit court, Warren county; RALPH NORTH, Judge. Robert King was indicted for the murder of one Cox. victed, and sentenced to be hanged, and he appealed.

Defendant was con

McCabe & Anderson and L. W. Magruder, for appellant. T. M. Miller, Atty. Gen., for the State.

ARNOLD, C. J. There is testimony in the record that Cox, the deceased, made threats against the life of appellant a short time before the homicide, and that these threats had been communicated to appellant; that the deceased was a violent, vindictive, and dangerous man, and that these characteristics were known to appellant; and that, while appellant and deceased were discussing the settlement of a controversy between them pending in a justice's court, deceased declared several times, in a loud and angry manner, he would pay nothing, and then cursed appellant, and said: "I will kill you if you keep on bothering me, or if you say anything more to me about it; and raised up and run his hand into his pocket as if he was going to kill me sure enough, when appellant drew his pistol and fired. In this state of the case appellant offered testimony to show that deceased habitually went armed with concealed deadly weapons, and that appellant was cognizant of this fact, and that deceased was generally reputed, in the community in which he lived, to go so armed, and that this was known to appellant. The court refused to allow this testimony to go to the jury, and in doing so it erred. Under the circumstances stated, it was for the jury to determine whether or no appellant had reasonable cause to apprehend danger to his life or limb at the time of the killing; and, to enable the jury to do this fairly and intelligently, by putting themselves as far as possible in the place of the appellant at the time of the killing, and viewing the situation as it appeared to him, the testimony should have been admitted. The same principle which justified the admission of evidence as to the character and threats of the deceased rendered the excluded testimony competent. Payne v. Com., 1 Metc. (Ky.) 370; State v. Smith, 12 Rich. Law, 430; Moriarty v. State, 62 Miss. 654; State v. Graham, 61 Iowa, 608, 16 N. W. Rep. 743.

Appellant also tendered witnesses to prove that the deceased had been engaged in frequent fights, in which he used deadly weapons, and that the witnesses had seen him in several fights in which he made deadly assaults on his antagonists, and that appellant knew these facts. The court properly sustained objection to this testimony. The character of the deceased could not be shown by particular acts of misconduct on his part, in no way connected with the accused. That could be proved only by evidence of his general reputation. 1 Bish. Crim. Proc. § 1117; 2 Bish. Crim. Proc. § 617; Moriarty v. State, 62 Miss. 654.

It was not error for the court to refuse to allow appellant to prove the declaration made by him after he was arrested, and but little more than a v.5so.nos.7-9-7

minute after the shooting, as to the reason why he shot the deceased. Such declaration was not a part of anything then being done, but a mere statement in regard to a past transaction, and was therefore incompetent. Mayes v. State, 64 Miss. 329, 1 South. Rep. 733. As a new trial must be awarded on account of the error above indicated, it seems unnecessary to consider other errors assigned. Reversed and remanded.

McCown v. MAYER.

(Supreme Court of Mississippi. November 5, 1888.)

CHATTEL MORTGAGES-ON CROPS TO BE GROWN-VALIDITY.

The owner of the soil may make a valid mortgage of the crop to be grown by him, before the crop is planted.

Appeal from circuit court, Warren county; RALPH NORTH, Judge. Action by J. T. McCown, as trustee for Andrews & Bro., against D. Mayer. Plaintiff appeals from judgment in favor of defendant. One Acuff, a planter, owed a debt to Andrews & Bro., merchants in Vicksburg; and, desiring to obtain further supplies to make his crop in 1887, executed a deed of trust to McCown as trustee for the benefit of Andrews & Bro., who agreed to furnish the supplies desired. This deed of trust was executed about 30 days before Acuff planted his cotton, and covered all crops to be grown by said Acuff, and was to secure, not only supplies to be furnished, but also the debt already due to Andrews & Bro. by Acuff. One Mayer had a judgment against Acuff, which he pressed him to pay, and Acuff took to Mayer part of the cotton covered by the deed of trust, with which he paid the judgment due Mayer. Cown, trustee, sued Mayer to recover the value of the cotton so delivered. McCabe & Anderson, for appellant. Booth & Blackwell, for appellee.

Mc

COOPER, J. The single question presented by this appeal is whether the owner of the soil may make a sale, valid and enforceable at law, of a crop to be thereafter planted on his land. We consider the point as settled in the affirmative by the case of Everman v. Robb, 52 Miss. 653. In that case the action was begun by an attachment for rent sued out by the landlord, under which certain cotton in the possession of Everman & Co. was seized. The landlord claimed a prior right to the cotton by reason of a reservation in the lease and a grant by the tenant, the lease having been executed and acknowledged both by the landlord and tenant. Subsequent to the lease the tenants gave an "agricultural lien" for supplies to Everman & Co., and delivered the cotton to them in payment of the debt secured thereby. Everman & Co. interposed a claimant's issue, instead of bringing the statutory action of replevin, but the cause was tried without objection having been made on account of the irregularity. The court, while criticising the form of procedure, dealt with the case as an action of replevin, and declared what were the legal rights of the parties. The judge by whom the opinion was written broadened the field of discussion, and entered somewhat into the history of equitable liens which courts of law could not enforce; but the point for decision was whether an un

A chattel mortgage upon crops to be raised in the future is valid, and attaches to the crops as soon as they come into existence, Norris v. Hix, (Iowa,) 38 N. W. Rep. 395; the land being in possession of the mortgagor, Oil Co. v. Maginnis, (Minn.) 20 N. W. Rep. 85; Miller v. Chapel, (Minn.) 29 N. W. Rep. 52. See, also, note, Id. Such mortgage conveys an equitable interest, which will support an action on the case against one who, with notice of the mortgage, receives and sells the crop. Whittleshoffer v. Strauss, (Ala.) 3 South. Rep. 524. A mortgage on "twenty acres of wheat now sown and growing on the ground, and still to be sown, on the twenty acres, this present season, on the farm, " etc., is not void for uncertainty in the description. As against a subsequent mortgagee, it covers the first 20 acres sown that season, or as much thereof as was sown when the mortgage was executed. Wade v. Strachan, (Mich.) 39 N. W. Rep. 582. See, also, note, Id.