distinction principle in Alabama

2015The United States Supreme Court in Schriro v. Summerlin, 542 U.S. 348 , 124 S.Ct. 2519 , 159 L.Ed.2d 442 (2004), provided further explanation of the Teague retro-activity analysis, observing that the key distinction in the analysis is whether the new rule of constitutional law is substantive or procedural.

2015The United States Supreme Court in Schriro v. Summerlin, 542 U.S. 348 , 124 S.Ct. 2519 , 159 L.Ed.2d 442 (2004), provided further explanation of the Teague retro-activity analysis, observing that the key distinction in the analysis is whether the new rule of constitutional law is substantive or procedural.

2010We note that in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 , 354 n. 20, 98 S.Ct. 2380 , 57 L.Ed.2d 253 (1978), the United States Supreme Court noted that “[tjhere is a distinction in principle between requests for identification of class members that are made to enable a party to send notice and requests that are made for true discovery purposes,” and it held that a party’s request for information solely for the purpose of identifying class members is not *750 within the scope of Rule 26, Fed.R.Civ.P., because such information is irrelevant to the subject matter involved in the pending ac

2010We note that in Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 , 354 n. 20, 98 S.Ct. 2380 , 57 L.Ed.2d 253 (1978), the United States Supreme Court noted that “[tjhere is a distinction in principle between requests for identification of class members that are made to enable a party to send notice and requests that are made for true discovery purposes,” and it held that a party’s request for information solely for the purpose of identifying class members is not *750 within the scope of Rule 26, Fed.R.Civ.P., because such information is irrelevant to the subject matter involved in the pending ac

1926In this aspect, it would be equally a crossing devoted to the public use (Shoemaker v. United States, 147 U.S. 282 , 297 [ 13 S.Ct. 361 , 37 L.Ed. 170 , 184 ]); and we see no basis for a distinction in principle in the case of an intersecting public road opened under competent authority because such a highway might lead to public recreation grounds instead of to places of business, or might connect lakes instead of avenues." Chicago, M.

1926In this aspect, it would be equally a crossing devoted to the public use (Shoemaker v. United States, 147 U.S. 282 , 297 [ 13 S.Ct. 361 , 37 L.Ed. 170 , 184 ]); and we see no basis for a distinction in principle in the case of an intersecting public road opened under competent authority because such a highway might lead to public recreation grounds instead of to places of business, or might connect lakes instead of avenues." Chicago, M.

1894Both these remain, by the reasonable and almost necessary meaning of the language, in the indorser.” In the case of the National Bank v. Hubbell, 117 N. Y. 384, 396 , the same distinction and rule is declared as held in 148 U. S., supra. The court says: “The firm, by the arrangement', had the right to retain the moneys and to remit weekly, and of course, from one week to another, it had the right to use the money, and the plaintiff relied upon the credit of the firm for such time as it had the right to retain the money.” In the case of the Machanics Bank v. The Valley Packing Co., 70 Mo. 643 ,

1894Both these remain, by the reasonable and almost necessary meaning of the language, in the indorser.” In the case of the National Bank v. Hubbell, 117 N. Y. 384, 396 , the same distinction and rule is declared as held in 148 U. S., supra. The court says: “The firm, by the arrangement', had the right to retain the moneys and to remit weekly, and of course, from one week to another, it had the right to use the money, and the plaintiff relied upon the credit of the firm for such time as it had the right to retain the money.” In the case of the Machanics Bank v. The Valley Packing Co., 70 Mo. 643 ,

1886R. & Bk’g Co. v. Letcher, 69 Ala. 106 , alluding to the statute, which requires signals to be given at specified times and places, it was held, that the statute does not relieve a person in peril of injury from the duty and necessity of taking ordinary care to avoid it; and does not modify or abrogate the principle, “that a plaintiff shall not recover for unintentional injuries — for injuries not wanton — to which his own negligence directly and immediately contributes.” A comparison of the several decisions shows, that they are founded on a distinction in principle between cases in which the

1868The only distinction in principle we can draw between that case and the cases of Barlow v. Lambert, 28 Ala. 704 , and of Boone & Co. v. Steamer Belfast, in maunseript, decided at the January term, 1867, is, that it is allowable to prove a custom as to the mode of doing a particular act, such as making a delivery of goods by a common carrier at a particular place, when the contract is silent as to the mode of delivery, or of giving notice where it is necessary to fix a liability or discharge it; but, it is not allowable to prove a custom which dispenses with a positive rule of law which require

1868We are unable to perceive the distinction in principle insisted upon, between the case of Purcell’s Adm’r v. Mather, supra, and the present case.

1861In Brown v. Lipscomb, ( 9 Porter, 472 ,) it was decided, that the legal title of a mortgagee to a slave becomes absolute by a forfeiture of the condition;- and is not divested by a subsequent payment.