The Montgomery advertiser., 1906-11-10

BOWLER ct al. z, V. PRfTcHARD ct al, Eorcible Entry ana Detalner-(De Decided
 lime I4, isO6--41 So. RepsN6SI.)
 Forcible entry and detainer; re- uoovaI to circuit from justice court veparate trial of issues--ln an ac1oh of forcible entry and detainer, begun m tha justice court, and removed 10 ths circuit court, before trial in ac- cordance with the provisions of sec tions 2147 2l4S and 214e, Code 1SSo' the Attendants are not entitled to nave as of right a separate trial of the issue of force vel non.
 3. Same; statutesI issues and proof In an action of forcible entry ana ue sainer removed before trial In the 1natice court to the circuit court, the onIv issue is as to the manner or de- sandants entry and not how he held noasession after entry, as the plaintlh n,1sf recover on the strength Of his title. unless he can show an entry oy defendant under some contract ot arreement with piaintin, or those un- der whom he claims, or by the use or
 {. Same: prior suit; evidence; rel avancy-The fact that prior suit nad heen brought was irrelevant, where much suit had no bearing on the for- cfbIe entry, or the title to the land.
 Same; instruction; issues-The ts- GneE DTGSenLou DGinB NAAClALSA NAAS fandants entered by force, and which party had the title to the land. an in- @truction asserting that the possession of inc property obtained by the defend ant was a scrambling possession, not obtained in good faith, and that if the Jury believed 1t was so when obtained they should find for the plaintiff, not presenting question Wlthlh the Iss"eS' was erroneous.
 6 Same; elements of.-The mere opening of a gate to enter the premises ig not such force as will, in law, con atitute a forcible entry.
 6. Same; instructions.-An instruc- tion that if the grantor of the proper ty had sufficient mental capacity to eonprehend the nature of his act when he made a deed to his brothers, the verdict should be for plaintiff, although the jury might believe that the pro curing of the deed was fraud on the wraptor, and that if he had such capac- fty to comprehend the nature or ms nct. both he and his heirs were barred ! by the statute of limitations to claim that the deed was fraudulent, was faul- 4v tn falling to hypothesize knowledge of the frauds and facts showing ad- verse possession.
 2. Appeal; instructions; objections at triai.-The court marked a charge sriven." but inadvertently handed il
 
 ana 1t did not get to the jury. Held n the absence of a showing that the trial courts attention was called to the fnadyertence at the time plaintiff can not now complain of it.
 B. Same; evidence; exclusion.-The exclusion of memorandum of notice to quit on one of the defendants was harmless where the jury found that the defendants entry was not by force or hnnder any contract or agreement with piaintiff or those under whom plain tin claimed.
 9. Evidence; declaration of third persons; res gestae.-Where there was no pretense that witness had anything to do with it, but came on the prem ises after entry by other defendants evidence as to what he said at the time he came on the premises Is not res gestae, and is inadmissible.
 10. Same.-Evidence as to what a witness and a third person, after en- try of defendants said with reference to the property. is inadmissible.
 "A. Same; best evldence.-The com