character claim in Alabama

1957Co. v. Rucker, supra, it was held that this presumption ‘is not an inference of fact, and that it has no intrinsic value as an inference, but that it serves in the place of evidence only until evidence to the contrary is adduced when it becomes functus officio.’ And in Craft v. Koonce, supra ( 237 Ala. 552 , 187 So. 731 ), in dealing with the character of this presumption, it was said as follows: ‘This is a procedural expedient and takes the place of evidence respecting matter peculiarly known to defendants, but necessary to sustain plaintiff’s cause of action, and is distinguishable from an i

1949Co. v. Rucker, supra, it was held that this presumption ‘is not an inference of fact, and that it has no intrinsic value as an inference, but that it serves in the place of evidence only until evidence to the contrary is adduced when it becomes functus officio.’ And in Craft v. Koonce, supra ( 237 Ala. 552 , 187 So. [730], 731), in dealing with the character of this presumption, it was said as follows: ‘This is a procedural expedient and takes the place of evidence respecting matter peculiarly known to defendants, but necessary to sustain plaintiff’s cause of action, and is distinguishable fro

1988Allen v. Scruggs, 190 Ala. 654, 659 , 67 So. 301 (1914).

1988Allen v. Scruggs, 190 Ala. 654, 659 , 67 So. 301 (1914).

1963On Rehearing The State urges upon us that the reason for decision in Little v. State, 34 Ala.App. 114 , 39 So.2d 587, 592 , should control herein.

1963On Rehearing The State urges upon us that the reason for decision in Little v. State, 34 Ala.App. 114 , 39 So.2d 587, 592 , should control herein.

1947And, as was said in Levison v. State, 54 Ala. 520 , and repeated in Lee v. State, supra: “It is often a matter of great delicacy and extreme difficulty, to determine, in ? criminal cause, whether a particular fact,, not bearing directly on the issue involved,, can be received as evidence.

1947And, as was said in Levison v. State, 54 Ala. 520 , and repeated in Lee v. State, supra: “It is often a matter of great delicacy and extreme difficulty, to determine, in ? criminal cause, whether a particular fact,, not bearing directly on the issue involved,, can be received as evidence.

1946In Bell v. State, 227 Ala. 254, 257 , 149 So. 687, 689 , the Supreme Court said: “The test is, (1) not whether the conduct or misconduct did actually influence the jury or a juror without the rules that obtain and outside of the evidence, but (2) that it must not be such as that it might have done so and so improperly influenced the jury or a juror contrary to law and for other motives than those the evidence afforded and the trial warranted.

1946In Bell v. State, 227 Ala. 254, 257 , 149 So. 687, 689 , the Supreme Court said: “The test is, (1) not whether the conduct or misconduct did actually influence the jury or a juror without the rules that obtain and outside of the evidence, but (2) that it must not be such as that it might have done so and so improperly influenced the jury or a juror contrary to law and for other motives than those the evidence afforded and the trial warranted.

1944One of the best discussions of the subject we have found is in the opinion in the case of State v. Rathbone, 110 Mont. 225 , 100 P.2d 86, 93 .

1944One of the best discussions of the subject we have found is in the opinion in the case of State v. Rathbone, 110 Mont. 225 , 100 P.2d 86, 93 .

1933Walker v. McCoy, 34 Ala. 659 ; Nelms v. Hill, 85 Ala. 583 , 5 So. 344 .

1933Walker v. McCoy, 34 Ala. 659 ; Nelms v. Hill, 85 Ala. 583 , 5 So. 344 .

1930In Driver v. Pate, 16 Ala. App. 418 , 78 So. 412 , this court said in substance: The question is not whether this misconduct did affect the verdict, for it has been held many times that it need not be shown that the misconduct complained of actually controlled or determined the verdict, if it is made apparent that the verdict might have been affected by it.

1930In Driver v. Pate, 16 Ala. App. 418 , 78 So. 412 , this court said in substance: The question is not whether this misconduct did affect the verdict, for it has been held many times that it need not be shown that the misconduct complained of actually controlled or determined the verdict, if it is made apparent that the verdict might have been affected by it.

1927In Cross v. Bank of Ensley, 205 Ala. 274, 276 , 87 So. 843 , the decree on homestead exemption was rendered after the affirmance of the decree ordering the foreclosure of the mortgage; the last bill was in the nature of a rehearing on several questions theretofore settled, set up abrogation, the right of homestead exemption (that had been pointed out as not claimed in the first bill), and the court declared, after examination of the opinion in Kennedy v. First National Bank, supra, that the question of claim of homestead was not too late; that it was settled by that decision; that in a case of

1927In Cross v. Bank of Ensley, 205 Ala. 274, 276 , 87 So. 843 , the decree on homestead exemption was rendered after the affirmance of the decree ordering the foreclosure of the mortgage; the last bill was in the nature of a rehearing on several questions theretofore settled, set up abrogation, the right of homestead exemption (that had been pointed out as not claimed in the first bill), and the court declared, after examination of the opinion in Kennedy v. First National Bank, supra, that the question of claim of homestead was not too late; that it was settled by that decision; that in a case of

1927And in Coleman v. Birmingham Fertilizer Co., 208 Ala. 160, 161, 93 So. 904, 905 , it is declared that: “The method by which such right may be asserted in the prior cause suggested in Cross v. Bank of Ensley, supra [ 203 Ala. 561 , 84 So. 267 ], was, as we have indicated, by ‘petition’ presented in the cause ‘in which the order of sale was granted.’ If, however, one entitled to homestead exemption knowingly permit his property to be seized and sold without interposing his claim thereto, he will be held to have waived his right to claim and would not be heard afterwards to complain.” It is estab

1927And in Coleman v. Birmingham Fertilizer Co., 208 Ala. 160, 161, 93 So. 904, 905 , it is declared that: “The method by which such right may be asserted in the prior cause suggested in Cross v. Bank of Ensley, supra [ 203 Ala. 561 , 84 So. 267 ], was, as we have indicated, by ‘petition’ presented in the cause ‘in which the order of sale was granted.’ If, however, one entitled to homestead exemption knowingly permit his property to be seized and sold without interposing his claim thereto, he will be held to have waived his right to claim and would not be heard afterwards to complain.” It is estab

1926In Puckett v. Bates, 4 Ala. 390 , speaking to this question, the court said: “The law is certainly well established that if the person for whose debt, default or miscarriage the undertaking is made, be liable at all so that the whole responsibility does not rest upon the second promisor, the second promise is collateral, and is void by the statute if not reduced to writing.” This character of test has found frequent repetition in our subsequent cases.

1926Boykin v. Dohlonde, 37 Ala. 577 ; Clark v. Jones, 6 So. 362 , 87 Ala. 474 ; Webb v. Hawkins Lumber Co., 14 So. 407 , 101 Ala. 630 ; Sanford v. Howard, 29 Ala. 684 , 68 Am.

1926Boykin v. Dohlonde, 37 Ala. 577 ; Clark v. Jones, 6 So. 362 , 87 Ala. 474 ; Webb v. Hawkins Lumber Co., 14 So. 407 , 101 Ala. 630 ; Sanford v. Howard, 29 Ala. 684 , 68 Am.

1926Boykin v. Dohlonde, 37 Ala. 577 ; Clark v. Jones, 6 So. 362 , 87 Ala. 474 ; Webb v. Hawkins Lumber Co., 14 So. 407 , 101 Ala. 630 ; Sanford v. Howard, 29 Ala. 684 , 68 Am.

1926Boykin v. Dohlonde, 37 Ala. 577 ; Clark v. Jones, 6 So. 362 , 87 Ala. 474 ; Webb v. Hawkins Lumber Co., 14 So. 407 , 101 Ala. 630 ; Sanford v. Howard, 29 Ala. 684 , 68 Am.

1925In the recent case of Watson v. Hamilton, 210 Ala. 577 , 98 So. 784 , may be found quotations from several of our decisions, among them that of Kornegay v. Mayer, 135 Ala. 141 , 33 So. 36 , wherein the court said the presentation must be such as “to give information of the character of the claim and of the amount of liability it imports.” (Italics supplied.) And, as said in Smith v. Fellows, supra: “This rule has existed too long without material judicial or legislative change, to be open to reconsideration in this-court.” In view of the long established rule, I am constrained to the opinion t

1925In the recent case of Watson v. Hamilton, 210 Ala. 577 , 98 So. 784 , may be found quotations from several of our decisions, among them that of Kornegay v. Mayer, 135 Ala. 141 , 33 So. 36 , wherein the court said the presentation must be such as “to give information of the character of the claim and of the amount of liability it imports.” (Italics supplied.) And, as said in Smith v. Fellows, supra: “This rule has existed too long without material judicial or legislative change, to be open to reconsideration in this-court.” In view of the long established rule, I am constrained to the opinion t

1925In the recent case of Watson v. Hamilton, 210 Ala. 577 , 98 So. 784 , may be found quotations from several of our decisions, among them that of Kornegay v. Mayer, 135 Ala. 141 , 33 So. 36 , wherein the court said the presentation must be such as “to give information of the character of the claim and of the amount of liability it imports.” (Italics supplied.) And, as said in Smith v. Fellows, supra: “This rule has existed too long without material judicial or legislative change, to be open to reconsideration in this-court.” In view of the long established rule, I am constrained to the opinion t

1925In the recent case of Watson v. Hamilton, 210 Ala. 577 , 98 So. 784 , may be found quotations from several of our decisions, among them that of Kornegay v. Mayer, 135 Ala. 141 , 33 So. 36 , wherein the court said the presentation must be such as “to give information of the character of the claim and of the amount of liability it imports.” (Italics supplied.) And, as said in Smith v. Fellows, supra: “This rule has existed too long without material judicial or legislative change, to be open to reconsideration in this-court.” In view of the long established rule, I am constrained to the opinion t

1914The giving of an abstract instruction which asserts a correct legal proposition is not a ground for a reversal, unless, because of the character of the instruction and the circumstances of the case, it is calculated to prejudice the party excepting. — Shelton v. State, 144 Ala. 106 , 42 South. 30 .

1914The giving of an abstract instruction which asserts a correct legal proposition is not a ground for a reversal, unless, because of the character of the instruction and the circumstances of the case, it is calculated to prejudice the party excepting. — Shelton v. State, 144 Ala. 106 , 42 South. 30 .

1913There was some evidence tending to show possession in the plaintiff under adverse claim of right under the conveyances above referred to, but there was also evidence in the case tending to show that the plaintiff’s possession, at best, was evidenced by only occasional acts of riding over the land and the making of a survey of it_ As was said by this court on the first appeal in this case: “The testimony of the defendant shows at least as unequivocal acts of possession by the defendants and those under whom they claim, as was shown by the predecessors of the plaintiff.” — Fletcher, et al. v. Ri

1913There was some evidence tending to show possession in the plaintiff under adverse claim of right under the conveyances above referred to, but there was also evidence in the case tending to show that the plaintiff’s possession, at best, was evidenced by only occasional acts of riding over the land and the making of a survey of it_ As was said by this court on the first appeal in this case: “The testimony of the defendant shows at least as unequivocal acts of possession by the defendants and those under whom they claim, as was shown by the predecessors of the plaintiff.” — Fletcher, et al. v. Ri

1911In Sadler v. Langham, 34 Ala. 311, 322 , it was ruled that the character of the presumption, of conformation to constitutional requirements by the Legislature, in the enactment of laws, was not conclusive — not conelu-' sive upon the judicial department, to which, in the division of governmental powers (the express restriction of each department to its sphere) such inquiries are committed by the organic law. — Const. §§ 42, 43.

1908It does not extend to cases where the defendant has acquired the possession peaceably and in good faith, under color of title. — Lessee of Fowler v. Whiteman, 2 Ohio St. 270 ; Drew v. Swift, 46 N. Y. 204 . * * * It therefore appears that pri- or possession is sufficient to entitle a party to recover in an action of ejectment only against a mere intruder or wrongdoer,' or a person subsequently entering without right.” And in Haws v. Victoria, 169 U. S. 316 , 16 Sup. Ct. 287, 40 L.

1908It does not extend to cases where the defendant has acquired the possession peaceably and in good faith, under color of title. — Lessee of Fowler v. Whiteman, 2 Ohio St. 270 ; Drew v. Swift, 46 N. Y. 204 . * * * It therefore appears that pri- or possession is sufficient to entitle a party to recover in an action of ejectment only against a mere intruder or wrongdoer,' or a person subsequently entering without right.” And in Haws v. Victoria, 169 U. S. 316 , 16 Sup. Ct. 287, 40 L.

1908It does not extend to cases where the defendant has acquired the possession peaceably and in good faith, under color of title. — Lessee of Fowler v. Whiteman, 2 Ohio St. 270 ; Drew v. Swift, 46 N. Y. 204 . * * * It therefore appears that pri- or possession is sufficient to entitle a party to recover in an action of ejectment only against a mere intruder or wrongdoer,' or a person subsequently entering without right.” And in Haws v. Victoria, 169 U. S. 316 , 16 Sup. Ct. 287, 40 L.