sounder rule in Alabama

1974It was there held: "It is no doubt the sounder doctrine, that a mere adjuration to speak the truth, addressed to a prisoner, will not authorize a confession induced by it to be excluded, where no threats or promises are applied.—Whart.Cr.Ev. §§ 647, 654; Aaron v. The State, 37 Ala. 106 .

1974It was there held: “It is no doubt the sounder doctrine, that a mere adjuration to speak the truth, addressed to a prisoner, will not authorize a confession induced by it to be excluded, where no threats or promises are applied. — Whart.Cr.Ev. §§ 647, 654; Aaron v. The State, 37 Ala. 106 .

1974Nor can a promise or inducement, be implied from the exhortation that it is best or better to tell the truth, it having been frequently so adjudged.—King v. The State, 40 Ala. 314 ; Aaron's Case, 37 Ala. 106 ; Whart.Cr.Ev. § 647; 2 Lead.

1974Nor can a promise or inducement, be implied from the exhortation that it is best or better to tell the truth, it having been frequently so adjudged. — King v. The State, 40 Ala. 314 ; Aaron’s Case, 37 Ala. 106 ; Whart.Cr.Ev. § 647; 2 Lead.

1899In the later case of Montgomery v. Crossthwait, 90 Ala. 553 , in discussing such alterations, the court said: “The law proceeds on the idea, that the identity of the contract has been destroyed, — that the contract made is not the contract before the court, — that the party did not make the contract which is before the court; and so adjudging, it cannot go further, and hold him bound by it, on speculations, however probable and plausible, that lie would or ought to have entered into the altered agreement, because it involved less liability than the original and only paper executed by him.” Aft

1890The sounder doctrine, and certainly the one supported by the overwhelming weight of authority, is that stated in Bellinger & Ralls v. Anderson, 87 Ala. 334 , arid there applied to a surety: that any material alteration, by one not a stranger to the paper, whether injurious or not, avoids the contract as to all parties not consenting.

1964It would not be safe to enlarge the scope of inquiry further, lest we have the moral habits of the witness inquired into, and also his regard for, and observance of, religious orthodoxy. * H= * » Supreme Lodge Knights and Ladies of Honor v. Baker, 163 Ala. 518 , 50 So. 958 : “The defendant attempted to prove one vice or moral dereliction as a circumstance tending to show the existence of another not necessarily or vitally connected with it as cause or effect.

1964It would not be safe to enlarge the scope of inquiry further, lest we have the moral habits of the witness inquired into, and also his regard for, and observance of, religious orthodoxy. * H= * » Supreme Lodge Knights and Ladies of Honor v. Baker, 163 Ala. 518 , 50 So. 958 : “The defendant attempted to prove one vice or moral dereliction as a circumstance tending to show the existence of another not necessarily or vitally connected with it as cause or effect.

1964This doctrine was specifically overruled in Alexander v. Gibson et al., 176 Ala. 258 , 57 So. 760 , and it was held that a general averment that the execution of a. will was procured as a result of undue influence was sufficient, and facts showing the-exercise of undue influence need not be set forth.

1964This doctrine was specifically overruled in Alexander v. Gibson et al., 176 Ala. 258 , 57 So. 760 , and it was held that a general averment that the execution of a. will was procured as a result of undue influence was sufficient, and facts showing the-exercise of undue influence need not be set forth.

1964Such a collateral matter, not affecting the issues, should not have been allowed in the case. $ * * ” *504 More to the point of instant concern, we have Coleman, J., in McCutchen v. Loggins, 109 Ala. 457 , 19 So. 810 : “In impeaching a witness, it is not competent to ask the impeaching witness if he knows the general character of the witness ‘for truth and veracity, and honesty and integrity,’ or was he not a ‘common thief.’ In many of our earlier decisions the enquiry was confined to ‘general character for truth and veracity.’ The later decisions, and the sounder rule, has extended the inquir

1964The petition averred that “the instrument sought to be probated is the product of, and the proximate result of, the undue influence of said Frank Romano exercised on said deceased and does not constitute the last will and testament of said deceased.” Counsel for appellant argues that the doctrine of Barksdale v. Davis, 114 Ala. 623 , 22 So. 17 , to the effect that the facts constituting undue influence must be distinctly averred, is the sounder rule, and should ‘be followed.

1960My views on the-question are stated in my special concur-, rence in the case of Louisville & Nashville Railroad Co. v. Solchenberger, Ala., 120 So.2d 704, 714 . 1 I think this to be the sounder rule in view of the long settled, principle that the original and main function, of mandamus is to coerce judicial action, and not to review it and also the rule against “piecemeal” review.

1960I wish to quote from my statement in the Solchenberger case to illustrate my dissent in this case, to-wits “It has long been my opinion that the method of review of motions to transfer was correctly stated in Esslinger v. Spragins, 236 Ala. 508 , 183 So. 401, 403 , as follows: “ We have uniformly held that an order refusing to transfer a cause from the law docket to the equity docket may not be assigned for error “on any sort of an appeal, and one which makes the-transfer can only be assigned for error on appeal from a final decree.” Holder v. Taylor, 233 Ala. 477 , 172 So. 761, 762 ; Derzis v

1960I wish to quote from my statement in the Solchenberger case to illustrate my dissent in this case, to-wits “It has long been my opinion that the method of review of motions to transfer was correctly stated in Esslinger v. Spragins, 236 Ala. 508 , 183 So. 401, 403 , as follows: “ We have uniformly held that an order refusing to transfer a cause from the law docket to the equity docket may not be assigned for error “on any sort of an appeal, and one which makes the-transfer can only be assigned for error on appeal from a final decree.” Holder v. Taylor, 233 Ala. 477 , 172 So. 761, 762 ; Derzis v

1960I wish to quote from my statement in the Solchenberger case to illustrate my dissent in this case, to-wits “It has long been my opinion that the method of review of motions to transfer was correctly stated in Esslinger v. Spragins, 236 Ala. 508 , 183 So. 401, 403 , as follows: “ We have uniformly held that an order refusing to transfer a cause from the law docket to the equity docket may not be assigned for error “on any sort of an appeal, and one which makes the-transfer can only be assigned for error on appeal from a final decree.” Holder v. Taylor, 233 Ala. 477 , 172 So. 761, 762 ; Derzis v

1960I wish to quote from my statement in the Solchenberger case to illustrate my dissent in this case, to-wits “It has long been my opinion that the method of review of motions to transfer was correctly stated in Esslinger v. Spragins, 236 Ala. 508 , 183 So. 401, 403 , as follows: “ We have uniformly held that an order refusing to transfer a cause from the law docket to the equity docket may not be assigned for error “on any sort of an appeal, and one which makes the-transfer can only be assigned for error on appeal from a final decree.” Holder v. Taylor, 233 Ala. 477 , 172 So. 761, 762 ; Derzis v

1960I wish to quote from my statement in the Solchenberger case to illustrate my dissent in this case, to-wits “It has long been my opinion that the method of review of motions to transfer was correctly stated in Esslinger v. Spragins, 236 Ala. 508 , 183 So. 401, 403 , as follows: “ We have uniformly held that an order refusing to transfer a cause from the law docket to the equity docket may not be assigned for error “on any sort of an appeal, and one which makes the-transfer can only be assigned for error on appeal from a final decree.” Holder v. Taylor, 233 Ala. 477 , 172 So. 761, 762 ; Derzis v

1960I wish to quote from my statement in the Solchenberger case to illustrate my dissent in this case, to-wits “It has long been my opinion that the method of review of motions to transfer was correctly stated in Esslinger v. Spragins, 236 Ala. 508 , 183 So. 401, 403 , as follows: “ We have uniformly held that an order refusing to transfer a cause from the law docket to the equity docket may not be assigned for error “on any sort of an appeal, and one which makes the-transfer can only be assigned for error on appeal from a final decree.” Holder v. Taylor, 233 Ala. 477 , 172 So. 761, 762 ; Derzis v

1956Smith v. Blinn, 221 Ala. 24 , 127 So. 155 .

1956Smith v. Blinn, 221 Ala. 24 , 127 So. 155 .

1946Corpus Juris asserts what we regard as the sounder rule, that expert services of this character may be the subject of contract upon which a recovery may be had (70 C.J. 76, § 88), citing among cases Barras v. Phaneuf, 166 Mass. 123 , 44 N.E. 141 , 32 L.R.A. 619 , and Birch v. Sees, 178 App. Div. 609 , 165 N.Y.S. 846 , which accurately support the text.

1946Corpus Juris asserts what we regard as the sounder rule, that expert services of this character may be the subject of contract upon which a recovery may be had (70 C.J. 76, § 88), citing among cases Barras v. Phaneuf, 166 Mass. 123 , 44 N.E. 141 , 32 L.R.A. 619 , and Birch v. Sees, 178 App. Div. 609 , 165 N.Y.S. 846 , which accurately support the text.

1946Corpus Juris asserts what we regard as the sounder rule, that expert services of this character may be the subject of contract upon which a recovery may be had (70 C.J. 76, § 88), citing among cases Barras v. Phaneuf, 166 Mass. 123 , 44 N.E. 141 , 32 L.R.A. 619 , and Birch v. Sees, 178 App. Div. 609 , 165 N.Y.S. 846 , which accurately support the text.

1946Corpus Juris asserts what we regard as the sounder rule, that expert services of this character may be the subject of contract upon which a recovery may be had (70 C.J. 76, § 88), citing among cases Barras v. Phaneuf, 166 Mass. 123 , 44 N.E. 141 , 32 L.R.A. 619 , and Birch v. Sees, 178 App. Div. 609 , 165 N.Y.S. 846 , which accurately support the text.

1929While that case did not involve parol evidence of expert witnesses, the principle declared is the same, and we think the sounder rule is to apply that principle to all cases. 5 Wigmore, § 2558; 1 Greenleaf Ev. (16th Ed.) § 486; Hansen v. Grand Trunk Ry., 78 N. H. 518, 102 A. 625 ; Christiansen v. Graver Tank Works, 223 Ill. 142 , 79 N. E. 97 , 7 Ann.

1929Cas. 69; Rood v. Horton, 132 Wash. 82 , 231 P. 450 ; Story’s Conflict of Laws, § 638.

1929Cas. 69; Rood v. Horton, 132 Wash. 82 , 231 P. 450 ; Story’s Conflict of Laws, § 638.

1929While that case did not involve parol evidence of expert witnesses, the principle declared is the same, and we think the sounder rule is to apply that principle to all cases. 5 Wigmore, § 2558; 1 Greenleaf Ev. (16th Ed.) § 486; Hansen v. Grand Trunk Ry., 78 N. H. 518, 102 A. 625 ; Christiansen v. Graver Tank Works, 223 Ill. 142 , 79 N. E. 97 , 7 Ann.

1929While that case did not involve parol evidence of expert witnesses, the principle declared is the same, and we think the sounder rule is to apply that principle to all cases. 5 Wigmore, § 2558; 1 Greenleaf Ev. (16th Ed.) § 486; Hansen v. Grand Trunk Ry., 78 N. H. 518, 102 A. 625 ; Christiansen v. Graver Tank Works, 223 Ill. 142 , 79 N. E. 97 , 7 Ann.

1912The distinction between the principle settled here, and that in Paris’s Case, 36 Ala. 232 , is fully pointed out in Spicer v. State, and nothing need be added on that point.

1899In the later case of Montgomery v. Crossthwait, 90 Ala. 553 , in discussing such alterations, the court said: “The law proceeds on the idea, that the identity of the contract has been destroyed, — that the contract made is not the contract before the court, — that the party did not make the contract which is before the court; and so adjudging, it cannot go further, and hold him bound by it, on speculations, however probable and plausible, that lie would or ought to have entered into the altered agreement, because it involved less liability than the original and only paper executed by him.” Aft

1892The rule goes no further than to the exclusion of other reasonable, not speculative, imaginary, possible hypotheses.” We adopt our last utterance on this subject, quoted above, and what we said in Blackburn’s case supra, as being the sounder rule, and our other adjudications in conflict therewith, are modified to the extent of conforming them to this ruling. —(Mose v. The State, 36 Ala. 230 ; Joe v. The State, 38 Ala. 424 ; Cohen v. The State, 50 Ala. 112 ; McGee v. The State, 52 Ala. 226 ; Coleman v. The State, 59 Ala. 530 ; Riley v. The State, 88 Ala. 193 .

1890It is enough that, if the instrument were genuine, it would operate differently from the original; or, as otherwise expressed, avoidance will result, “ if the alteration is one which causes the paper to speak a language different in legal effect from that which it originally spoke. ” —Bank v. Douglas, 31 Conn. 170, 181 ; Gardner v. Walsh, 5 El. & Bl. 82; Morrill v. Otis, 12 N. H. 466; Reeves v. Pierson, 23 Hun, 185 ; Humphreys v. Guillow, 13 N. H. 387; Dickerson v. Miner, 43 Iowa; Lunt v. Silver, 5 Mo. App. 186 ; 2 Pars.

1890It is enough that, if the instrument were genuine, it would operate differently from the original; or, as otherwise expressed, avoidance will result, “ if the alteration is one which causes the paper to speak a language different in legal effect from that which it originally spoke. ” —Bank v. Douglas, 31 Conn. 170, 181 ; Gardner v. Walsh, 5 El. & Bl. 82; Morrill v. Otis, 12 N. H. 466; Reeves v. Pierson, 23 Hun, 185 ; Humphreys v. Guillow, 13 N. H. 387; Dickerson v. Miner, 43 Iowa; Lunt v. Silver, 5 Mo. App. 186 ; 2 Pars.

1882Rep. 286, “ The same natural causes,” as observed by a learned court, “ would have produced the same results on any other day, and the time of the accident or injury, as that it was on Sunday, is wholly immaterial so far as the cause of it, or the question of' contributory negligence is concerned.” —Sutton v. Wauwatosa, 29 Wis. 21 ; Mohney v. Cook, 26 Penn.

1875Pratt & Co., ib. p. 116, this court departed from and, in effect, overruled Myatt v. Bell, supra, and returned to the sounder doctrine that all reasonable intendments will be indulged by this court in favor of the correct ruling of the court below.