Newbrick & Bros. v. Dugan

BRICKELL, C. J. A party has a clear legal right to reexamine his witnesses as to matters requiring explanation, or as to new matter, his adversary may have introduced. It is not within the discretion of the court to permit or refuse such examination, and if on a proper application, the right is refused, the refusal would be an error compelling the rever-' sal of a judgment against him. No distinction can be made between the refusal of the right, and the refusal to admit any legal evidence. — 1 Whart. Ev. § 572. It is within the discretion of the conrt to permit or refuse the reexamination as to matters in reference to which, the witness has been examined, and the action of the court in this respect is not revisable on error. — 1 Whart. Ev. § 574; Towns v. Riddle, 2 Ala. 694; Gayle v. Bishop, 14 Ala. 552. The witness, as the bill of exceptions states, had been examined by the appellants on his examination in chief, as to the same matters in reference •to which it was proposed to reexamine him. So far as is 253 shown, the only purpose of a reexamination, was, that he should repeat his former testimony, rendering the conflict between his evidence and that of the appellee the more apparent to the jury. The reexamination for this purpose rested in the discretion of the court below, and the exercise of the discretion is not revisable. 2. Instructions to the jury, given or refused, must be construed in connection with the evidence on which they are based. When personal property was found in possession of husband and wife, the presumption at common law, was of title in the husband, because the wife was incapable of holding property, and of a possession distinct from that of the husband. — Bell v. Bell, 37 Ala. 536. But if the property was the equitable separate estate of the wife, the possession was referred to her title, and there was no room for the operation of the presumption of ownership in the husband. — Newman v. James & Newman, 12 Ala. 29; Michan v. Wyatt, 21 Ala. 813. The universal principle is, that when two persons are in the joint possession of property, the title being in one, the law refers the possession to the title. — Bragg v. Massie, 38 Ala. 105. The charge requested ignored the facts tending to show the title to the property rested in the claimant, and that she was a free-dealer, capable of holding property separate from her husband. If the title resided in her, the possession, if it had been shown to be held by her and the husband jointly, would have been referred to the title, and all presumption of title in the husband excluded. The charge requested was properly refused. Affirmed.