fendant McConnell then demurred to the complaint on several grounds, the principal of which are sufficiently stated in the opinion. This demurrer was overruled, and the defendants then pleaded as follows: (1) A denial of the allegations of the complaint. (2) That at the time the plaintiff gave notice to the defendant that he looked to his lien on the building owned by the defendant for payment of his claim, the defendant was not indebted to the contractors for the building or improvements erected on his lot. (3) That at the time the notice was given to the defendant, that the plaintiff looked to his lien on the building, the defendant had paid the full amount he had contracted to pay to the contractors for the erection of said building, and that he had paid the said sum on pay rolls for labor done upon said building, furnished to him by said contractors; and to material men on bills furnished by said contractors for material used in said building, and that the defendant paid each of said bills and pay rolls in full as presented. (4) That the contractors did not complete the building to be erected by them in accordance with the terms and provisions of their contract with the defendant; that the defendant paid the expenses for completing the said building in accordance with said contract; and that under said contract he was entitled to certain liquidated damages, if the contractors failed to complete the building at a specified time; and that after a de duction of said several sums from the contract price for the erection of said building, the defendant had paid out the full amount, and more than was contracted for. The plaintiff demurred to these pleas as follows: To the second plea, because the same is no answer to the complaint. To the third plea on the ground that the plea fails to allege that before making any payment under the contract with Stoner, & Co. the defendant demanded of the said contractors a complete list of all the material men, laborers and employes who had furnished materials or performed any labor or service, in and about the erection of said building, under any contract, with the contractors; and also failed to allege that he paid such amounts due said contractors to persons named in such a list. Fourth. The plea was demurred to on the same ground as the third. The demurrers to these pleas, respectively, were sustained, and the defendant excepted. Upon motion of the plaintiff, it was ordered by the court that the cause be discontinued as to the defendant Matthew T. Stoner, who had not been served with process, and the defendant C. E. Bryan in open court, consented to proceed with the trial, of the cause in the city court. The facts of the case, in reference to the contract for the erection of the house, between Stoner & Co. and the defendant H. L. McConnell, are substantially the same as those found in the case of Hardware Co. v. McConnell, 14 South. 768.

The plaintiff in this case sued for a balance due him for plumbing, which work was done under a contract with Stoner & Co. The other necessary facts are sufficiently stated in the opinion of this case. The cause was tried without the intervention of a jury, and upon the hearing of all the evidence, the court rendered judgment for the plaintiff.

E. J. Smyer, for appellant. Hibbard & Miles, for appellee.

HARALSON, J. 1. There was no error in sustaining a demurrer to defendant's plea in abatement. When the appeal was taken to the city court, the judgment before the justice was vacated, and ceased to have any force or effect, either as an estoppel, or as matter of evidence. The only defenses that court could regard, were such as went to the merits of the case, to be tried de novo, as if it had originated in that court, in the first instance. Code, § 3405; Lehman v. Hudmon, 79 Ala. 532; Littleton v. Clayton, 77 Ala. 571; Abraham v. Alford, 64 Ala. 281.

2. The statute provides, that "the complaint shall contain a description of the property on which the lien is claimed, and shall allege the facts necessary to entitle the plaintiff to the lien and the enforcement thereof." Code, § 3029. The demurrer to the complaint does not question its sufficiency, except in the respects, (1) that Stoner & Co. are necessary parties to the suit, and are not made parties; (2) that C. E. Bryan and M. T. Stoner are necessary parties and have not been served with process; and because, (3) the plaintiff seeks a personal judgment against defendant, McConnell. The complaint does not show, and it is unnecessary for it to show, that any of the defendants had been served, and a complaint is never subject to demurrer for anything not appearing in it. M. T. Stoner and C. E. Bryan, as appears from the complaint, were proceeded against, as "late partners in business under the firm name of Stoner & Co.," and they are described in the summons in the same manner, which was served by executing it on C. E. Bryan. It cannot be objected, then, that suit was not instituted against the late firm of Stoner & Co. It is not clear from the complaint, that a moneyed judgment is not sought against appellant, McConnell, as well as against the other defendants; but one thing is certain, and that is, that no such judgment was rendered against him. The court did no more, in the judgment that was rendered, as against the appellant, than to declare a lien on the lot of land upon which the complaint sought to have one declared and enforced, and to order its sale for the amount of the judgment rendered in the suit against the contractor. If there was any error in the frame of the complaint, as to him, in this respect, the appellant suffered no injury from it, and cannot be heard to complain, for the overruling his demurrer to it.

3. On the trial of the cause, without any objection on the part of either of the other defendants, it was discontinued as to M. T. Stoner, who was not served, and it was prosecuted against the said C. E. Bryan, who appeared and consented to proceed with the trial; and judgment was rendered against him, for $101.42, and a lien was declared and ordered enforced against the land described in the complaint. The appellant not having objected in the court below, to the trial of the cause, without said Stoner as a party defendant,—if it was necessary for him to be one, cannot raise that question for the first time in this court. Neither of pleas 2, 3, and 4 filed by the appellant, the owner of the building, shows a compliance by him with the requirements of the statute, in order to exempt his property from the declaration and enforcement of a lien thereon under said act, and were, therefore, subject to the demurrer interposed to them. The case was tried by the court without a jury, upon the denials of the allegations of the complaint.

4. By the contract with plaintiff, the contractors were to complete the house within 60 days from the 21st July, 1892. The plaintiff, on the 4th November, following, notified appellant, in the manner required by statute, of his intention to claim a lien, and, on the 21st of November, he filed his claim of lien under the statute, (Laws 1890-91, p. 578, § 2,) in the office of the judge of probate of the county. The evidence showed, without conflict, that the list as required by section 21⁄2 of said act, was not demanded by the appellant nor furnished by the contractors. They furnished pay rolls of laborers, once a week, and he settled by them. The plaintiff testified, that about the time he was completing his contract for labor and materials furnished, he made out his bill showing the balance unpaid, which was certified by the contractor as follows: "Mr. McConnell, please pay above when plumbing is finished, and oblige, Bryan & Stoner. 10/1, 1892,"—and presented the same, thus certified, to Mr. McConnell's authorized agent in charge of the work, who informed him that he had $350 on hand, due the contractors,-more than enough to pay him, and further, that he completed his contract. This account was presented to J. W. McConnell, defendant's agent, on the 1st of October, 1892. It was also shown by plaintiff, that said McConnell knew the plaintff was doing the work, and had paid him up to 1st October, $75 thereon. J. W. McConnell, the agent of defendant, testified for him, that he did not remember telling plaintiff that he had money enough in his hands to pay his claim, but he may have told him so; that plaintiff did not complete his job until the 25th or 26th of October, 1892, and that he had already paid out more money, than he owed the contractors under the contract.

5. We have the case, then, presented to us in this manner: The owner failed to comply with requirements of the mechanics' and ma

terial men's act, to protect his property from the declaration and enforcement of a lien thereunder; the proofs show, that he knew what he would owe the plaintiff, on the completion of his contraet; he allowed him to go ahead and complete it, by furnishing labor and materials, and did not forbid him to do so; that he told him he had money enough going to the principal contractor, to pay him, and this, as is presumable, to induce plaintiff to complete the work, and, now, refuses to pay it, on the alleged ground, that he had already paid out more than he had contracted with the principal contractors to pay. Such a defense cannot be entertained. He is estopped to deny he had money in hand, of the contractor, sufficient in amount to pay plaintiffs. Myers v. Byars, (Ala.) 12 South. 430. This disposes of all the matters assigned as error which have been insisted on in argument. Affirmed.

KARR v. STATE. (Supreme Court of Alabama. Feb. 7, 1894.) HOMICIDE-SELF-DEFENSE-EVIDENCE.

1. Evidence that deceased had made threats against the accused, and was of a violent disposition, did not justify a resort to a deadly weapon, where there was no demonstration of an intent, coupled with ability, to take life or inflict bodily harm.

2. Where there was evidence that de ceased was a violent man, an instruction that, under such circumstances, more prompt measures of defense would be justifiable than if he were of a peaceable disposition, should be given.

3. Evidence that deceased had received a threatening, anonymous letter, in which no reference was made to the defendant, is inadmissible, where there is no evidence connecting him with the sending of the letter, or that he had any knowledge that deceased had received it.

Appeal from circuit court, St. Clair county; Leroy F. Box, Judge.

John A. Karr was indicted and tried for the murder of Jason Smith, and convicted of murder in the second degree. Reversed and remanded.

The evidence, without conflict, tended to show that at the time the said Smith was shot by the defendant he had a gun in his hand, starting up the steps of the defendant's house, but that the gun was not held by the deceased as if he was about to shoot. The evidence further tended to show that the deceased had many times made threats against the defendant and his son, and had declared, no longer than the morning that he (the deceased) was killed, that he was going to kill the defendant and his son during the day; that this threat was communicated to the defendant and his son; that at the time of the shooting the defendant and his son were in one of the rooms of defendant's house, and, as the deceased started up the steps, each one of them fired upon him. At the request of the solicitor, the court gave the following written charges: (1) "The court charges the

jury that, if the defendant relies on a justification of his acts partly by threats made against him by Jason Smith before the killing, then such threats will not, of themselves, be a justification of the homicide, unless the jury further find from the evidence that deceased, at the time of killing, was manifesting an intention to carry such threats into execution, by a positive act then done, or that, from the acts of the defendant at the time of the killing, it would have appeared to a reasonable mind, under the circumstances, that the deceased was attempting to execute the threats against defendant." (2) "The court charges the jury that a person charged with murder, who seeks to justify himself on the ground of threats against his own life, is permitted to introduce evidence of such threats so made. But the same should not be regarded as affordIng a justification for the killing or offense, unless it be shown that at the time of the homicide the person killed, by some act then done, manifested an intention to execute the threats so made, or reasonably appeared to defendant to be so doing." (3) "The expressions used, in charging the jury, that the jury must find the defendant not guilty unless the evidence against him should be such as to exclude to a moral certainty every hypothesis but that of the guilt of the defendant, as charged, and that the evidence from the state should be so convincing as to lead the minds of the jury to the conclusion that the accused cannot be guiltless, are but strong expressions of that full measure of truth which the law exacts before it will sanction a conviction of a criminal offense." To the giving of each of these charges the defendant severally and separately excepted.

John A. Bilboo and John W. Inzer, for appellant. Wm. S. Martin, Atty. Gen., for the State.

STONE, C. J. The homicide which gave rise to this prosecution was perpetrated on August 28, 1892, and at the entrance of defendant's dwelling. There is no conflict in the testimony on these points. When shot down and killed, deceased was approaching the door of defendant's home with a gun in hand, though not raised, or put in position for shooting. There is testimony that deceased had made threats against the life of the accused, and that he was a man of violent and dangerous character. Now, these facts, alone, do not, of themselves, justify or excuse an immediate resort to deadly weapons on the mere suspicion that life is endangered. There must be some demonstration, or apparent demonstration, of an intent, coupled with ability, to take life or inflict grievous bodily harm, before extreme measures become defensive, and can be resorted to. Ex parte Brown, 63 Ala. 187; Brown v. State, 74 Ala. 478; Roberts v. State, 68 Ala. 156; Storey v. State, 71 Ala.

329; Rogers v. State, 62 Ala. 170; De Arman v. State, 71 Ala. 351; Myers v. State, 62 Ala. 599. The several charges given at the instance of the state assert correct legal principles, and the circuit court did not err in giving them.

The tendencies of the testimony possibly called for an instruction which does not appear to have been given or asked for. There was testimony, as we have said, tending to show that deceased was a violent and dangerous man. If such was his character and disposition, more prompt and decisive measures of defense would be justifiable than if he were of a peaceable disposition. His character for violence, if found to exist, and previous threats, if believed to have been made, should be weighed by the jury, in determining whether the defendant, when he fired the gun, acted under a reasonable apprehension of present, impending peril to his life, or of suffering some other grievous bodily harm. De Arman v. State, 71 Ala. 351; Lang v. State, 84 Ala. 1, 4 South. 193; Smith v. State, 88 Ala. 73, 7 South. 52.

It was shown that deceased had received an anonymous letter about two months be fore the homicide occurred. It came through the mail, and was both threatening and abusive. There was no attempt to connect the defendant with the authorship of the letter, or to show that he had any agency in getting it up or in sending it. It made no reference whatever to the defendant, or to any subject of quarrel, disagreement, or other relations between him and the deceased. This anonymous letter was offered in evidence by the prosecution, objected to by the defendant, the objection overruled, and the letter was read to the jury. The defendant excepted. In receiving this evidence the circuit court erred. If this testimony was of fered as a reason why the deceased was bringing home a gun at the time he was fired on, there are two reasons why it was improper for that purpose: First. It was too long after the receipt of the letter to authorize the inference that the threats it contained prompted the deceased to arm himself, there being near two months between the time he received the letter and the time it appears he obtained the gun. Second. There is no attempt to show that defendant had any knowledge or notice that deceased had received such letter. In the absence of such notice, even if such was the reason why deceased was armed, defendant's legal accountability must be tested and determined without any reference whatever to that letter. But we must not be misunderstood. What we have said in this conneetion is only important in making the inquiry whether defendant, at the time he fired the gun, had reasonable ground for believing, and did believe, it was necessary for him to kill Smith in order to preserve his own life, or to save himself from grievous bodily harm. If the jury fail to find this to

be the case, the plea of self-defense is not made good. We will add, the defendant, being in his own domicile, was not bound to retreat.

The court erred, also, in receiving testimony that defendant took "a drink" on the night preceding the homicide. We find no other errors. Reversed and remanded.

RHEA v. STATE.

(Supreme Court of Alabama. Feb. 8, 1894.) HOMICIDE-INSTRUCTIONS REASONABLE DoubtIMPEACHING EVIDENCE.

1. Instructing the jury to find defendant guilty of murder if they "believe" that he formed a design to, and did, kill deceased, is erroneous, though, in another portion of the charge, the jury is properly instructed as to reasonable doubt.

2. The fact that a witness is a prostitute cannot be singled out as a ground for impeaching her credibility.

Appeal from circuit court, Calhoun county; Leroy F. Box, Judge.

Samuel Rhea was convicted of murder in the second degree, and appeals. Reversed.

The testimony for the state tended to show that the defendant and the deceased, Allen Daniel, got into a quarrel at the house of one Lou Morgan about a woman by the name of Annie Talbot; that, on said Annie Talbot refusing to leave the deceased, the defendant said he would kill the deceased, and, as he backed away from where the deceased and the woman were sitting, deceased following him, he shot three times, killing deceased. The testimony for the defendant tended to show that the said Allen Daniel was advancing upon the defendant with his hand on his hip pocket, in the act of drawing a pistol, when the defendant shot him. The court, among others, gave the following charges: (8) "Unless the jury believe, beyond all reasonable doubt, that Rhea killed Daniel with a wickedness or depravity of heart towards the deceased, or mankind in general, there is no murder in this case." (10) "Unless the jury believe from the evidence, beyond all reasonable doubt, that Rhea is guilty, they should return a verdict of not guilty." (11) "Unless the jury believe from the evidence, to a moral certainty, that the defendant, Rhea, was not acting in selfdefense, then they should let the defendant go free." (12) "Unless the evidence excludes every reasonable hypothesis except that of the guilt of the defendant, the jury should find the defendant not guilty." (15) "The court charges the jury that the defendant is presumed to be innocent until he is proven, beyond all reasonable doubt, to be guilty." The defendant requested the court to give the following written charges, and separately excepted to the refusal to give each of them as asked: (17) "The court charges the jury that they should consider the testimony of the defendant the same as they do the

testimony of any other witness; and because he is the defendant is no reason, of itself, why they should discredit him." (18) "In considering whether Rhea or Daniel was the aggressor in bringing on the difficulty in which Daniel was killed, the jury should consider whether or not Daniel's character was that of a quarrelsome and fighting man; for the law says that Rhea was justified in taking more prompt and decisive measures of defense if Daniel was the assailant, and was a man of known violent and fighting nature." (20) "The court charges the jury that in weighing the evidence of Lou Morgan and Hattie Ables, and in determining what credit the jury will give their testimony, the jury may consider their character for chastity and virtue."

J. H. Caldwell, W. J. Brock, A. P. Agee, and D. D. McLeod, for appellant. Wm. L. Martin, Atty. Gen., for the State.

STONE, C. J. Charges 8, 10, 11, 12, and 15, given by the court in this case, each properly stated the law as to reasonable doubt; and each declared, in substance, that defendant was entitled to acquittal unless the testimony convinced the jury, beyond reasonable doubt, that he was guilty. These charges are so varied in phraseology and presentation as to meet every phase and tendency of the testimony, and every hypothesis it justified counsel in assuming. They seem to have covered the entire field. Yet the court, at the instance of the prosecution, charged the jury "that if they believed from the evidence that the defendant formed the design to kill Allen Daniel unlawfully, and that in pursuance of such formed design did kill Allen Daniel, in this county, and before the finding of this indictment, then the defendant is guilty of murder." This was excepted to. It will be observed that this charge, considered by itself, is faulty, in not stating the proper measure of conviction the testimony must produce on the minds of the jury, to justify a verdict of guilty. Believing from the testimony that the facts exist is not enough. The belief must be so strong as to leave no reasonable doubt of its truth. Such is the rule in criminal cases. Pierson v. State (Ala.) 13 South. 550; Heath v. State, Id. 689. The law is tenderly regardful of human life and of human liberty. Hence, the rule which requires a higher measure of proof in criminal prosecutions than in civil suits. Charges, if given separately, and separately excepted to, must, as a rule, be construed separately. Each should assert a correct legal proposition, when applied to the testimony.

Under our rule, bad general character, as a generic proposition, may be given in evidence to impeach a witness. It is not confined to character for truth and veracity. Ward v. State, 28 Ala. 53; Holland v. Barnes, 53 Ala. 83; Motes v. Bates, 80 Ala. 382;

Davenport v. State, 85 Ala. 336, 5 South. 152. But the fact that a woman is a prostitute, while it is one of the constituents that make up her general character, cannot be singled out, and made a special ground for impeaching her character for veracity. Railway Co. v. Hale, 90 Ala. 8, 8 South. 142; McInerny v. Irvin, 90 Ala. 275, 7 South. 841. Charge 20, asked by defendant, was properly refused.

There was testimony tending to show that "deceased had a bad character for fighting, turbulence, violence, and quarrelsomeness." There was also some testimony tending to show that Daniel, the deceased, made the first hostile demonstration, but the proof was in conflict on this inquiry. In De Arman's Case, 71 Ala. 351-361, we said: "In this connection the testimony offered to prove the violent or dangerous character of the deceased, if believed, should be considered. On all doubtful questions as to who was the aggressor, the violent or bloodthirsty character of the deceased, if such be his character, enters into the account. More prompt and decisive measures of defense are justified when the assailant is of known violent and bloodthirsty nature. But this principle is confined to defensive measures. It furnishes no excuse or palliation for aggressive action, nor when the difficulty is brought on or sought by the accused." This principle was approved in Lang v. State, 84 Ala. 1, 4 South. 193; Smith v. State, 88 Ala. 73, 7 South. 52, and in Karr v. State (at the present term) 14 South. 851. Under this principle, charge 18 was asked by defendant. Its refusal was excepted to, and is urged as ground for reversal. We do not wish to impair or qualify that doctrine, but we are unwilling to extend it. All charges asked should be molded and shaped so as to be in accord with some phase of the testimony, and if not correct expositions of the law, when construed in the light of the testimony bearing on them, they should be refused. The hypothesis of the charge asked was that the jury should consider whether the character of Daniel, the deceased, was that of a "quarrelsome and fighting man." Neither of the words "violent," "dangerous," or "bloodthirsty" is found in the hypothesis. The jury might have found that Daniel was a quarrelsome, fighting man, and yet failed to be convinced that he was a dangerous or bloodthirsty man. Defendant killed the deceased with pistol shots; and if this charge had been given, and if the jury had found that Daniel was simply a quarrelsome, fisticuff fighter, then they were instructed to consider such character, in determining who was the aggressor in bringing on the difficulty. There was no proof that Daniel was armed, or that he had the character of being a dangerous or bloodthirsty man, who fought with weapons. We are unwilling to extend the doctrine of De Arman's Case to the facts hypothesized in charge 18. Ap

plied to the tendencies of the testimony, it would be calculated to mislead the jury. This charge was rightly refused.

Following Pierson's Case, the court reverses the conviction in this case on the single point of the charge given at the instance of the prosecution. Reversed and remanded.

PAYNE v. CRAWFORD.

(Supreme Court of Alabama. Feb. 8, 1894.) AWARD-VALIDITY-EJECTMENT-TITLE TO SUPPORT-EVIDENCE-INSTRUCTIONS.

1. An award in an arbitration proceeding instituted and conducted under the rules of the church to which the parties belong is binding.

2. An award in an arbitration proceeding is set aside by an agreement in writing between the parties, made subsequent to its rendition, to submit the matter in controversy to different arbitrators.

3. Error in overruling a demurrer to a replication is harmless if defendant had the benefit of all the evidence he could have had, had the demurrer been sustained.

4. A witness in ejectment cannot be asked if another had not told him (witness) that defendant had said that his (defendant's) deed did not cover the land in controversy.

5. A party in ejectment may introduce in evidence declarations of his deceased grantor, made while on the land or in possession of it, as to its boundaries.

6. Plaintiff in ejectment may introduce in evidence the deed under which he claims, though there was uncertainty in the description. 7. Plaintiff in ejectment cannot testify that defendant admitted to her that he had a deed of the land in controversy, and that he refused to show it to her.

8. Plaintiff, without documentary title, may recover by showing prior possession under claim of title.

9. The giving of abstract and argumentative charges is not ground for reversal unless injury is shown.

10. An instruction that plaintiff was entitled to recover if he was in possession of the disputed land, claiming to own it, up to the time defendant took possession, is erroneous as ignoring defendant's title.

11. An instruction that defendant is not entitled to a verdict, in the absence of a paper title, unless he, or those under whom he claims, have had actual possession for 10 years, is er roneous, in that it is not predicated upon an hypothesis of facts showing plaintiff's right to

recover.

12. An instruction that a deed under which defendant claimed was of no benefit to him unless it showed on its face that it covered the land in dispute is erroneous.

13. An instruction that defendant's failure to testify should not be considered to his detriment was properly refused.

Appeal from circuit court, Lee county; J. M. Carmichael, Judge.

Action in the nature of ejectment by Mary A. Crawford against L. W. Payne. Judgment for plaintiff. Defendant appeals. Reversed.

The substance of the pleas is sufficiently stated in the opinion, as are also the four replications to the first plea, which are considered by the court. To the fourth and fifth replications the defendant demurred on the grounds: (1) Because the facts set forth