30 Ala. 211 | Ala. | 1857
This action is, under section 2209 of the Code, a substitute for the action of ejectment, and must
The court charged the jury, in substance, that if they believed • the evidence set forth in the bill of exceptions, they must find for the plaintiff. The question, whether tlie instruments under which the plaintiff'claims a recovery were fraudulent as to the creditors of J. M. Hamilton or of J. M. Hamilton & Co., was material, and directly involved; and upon that question, the evidence was conflicting. The rule is, that where there is any conflict in the evidence, on any material question of fact in the case, it is error in the court to charge the jury that, if they believe all the evidence, they must find for one of the parties. Lawler v. Norris, 28 Ala. 675.
We do not wish to be understood as intimating that the charge of the court below is not erroneous in other respects. All we decide is, that the charge is certainly erroneous in denying to the jury the right to pass upon the question of fraud, and the conflicting evidence in relation to that question. Whether the charge is not
For the error of the charge in the particular above pointed out, the judgment is reversed, and the cause remanded.