4. Railway companies' interest in land appropriated; what, of value left
to owner, considered, in estimating amount of compensation. —Railway
companies, by virtue of their compulsory powers, (Bill of Rights,
§25), acquire no absolute fee simple to, but only the right to use
the land for their purposes; and compensation must be made for
the value of the use appropriated; in estimating such value, what,
if anything, would be left to the land owner, of value, consistent
with the enjoyment of the easement, by the railroad company,
should also be considered.—S. C......
5. Diminution in value of rent; proof concerning. In an action on
the case against a railroad company for injury done to a house and
lot, in a town, by the construction of a railroad cut, in the street
opposite, it is competent to show, that the value of the rent of the
property was thereby diminished; but it is not competent to show,
that the rent of other property, similarly situated, belonging to
third persons, was diminished by the same cause.—Selma & N. R. R.
Co. v. Knapp..
480
6. Special injury; proof of.-It is competent to show that the
premises were diminished in value by the railroad cut, specifically,
as a residence and shoe shop, purposes to which they had been
previously put.-S. C.......
7. Action by employee against railroad.-In an action by an em-
ployee against a railroad company, for an injury to the employee,
it is not necessary to aver in the complaint the place where the in-
jury was sustained.-Mobile & Ohio R. R. Co. v. Thomas.......
8. Respective liabilities of railroad, as to injuries to passengers and ser-
vants. Where the passengers on a railroad are injured, in con-
sequence of a defect in any instrument employed by the railroad,
it is a presumption, disputable, but not conclusive, that the injury
resulted from negligence. But the same principle does not pre-
vail in reference to servants of a railroad; in the latter case, the
onus of proving negligence is upon the injured servant.-S. C..... 672
9. Railroad's duty in furnishing engines; on whom onus of proving
negligence for injury to servant. It is not an absolute duty of a
railroad corporation to furnish a suitable and safe engine. It is its
duty to use due care and diligence to furnish such an engine.
When an injury has occurred to a servant of the corporation, in
consequence of a defect in an engine, and he sues the corporation
for such injury, the burden is upon the plaintiff to show negligence,
or the want of care and diligence in the defendant corporation.
The onus of proof is not shifted to the defendant, by the fact that
an injury has resulted from the defect.-S. C.........
10. Mechanics charged with repairing-negligence.—An artisan charged
with a duty of repairing, within the scope of his handicraft, is not
conclusively shown to have been negligent, by a failure to remedy
some defect specifically pointed out to him; for he may have at-
tempted to remedy it, and exhausted the skill and care of his art,
and yet from some defect in material, or some other cause, beyond
the detection of ordinary caution and care, may have failed to alto-
gether cure the defect.-S. C.......
11. Liability of employee for injury of a servant by another servant.
The rule is well established in this State, that "when two persons
are employed by a common employer, in the same general business,
and one of them is injured by the negligence of the other, the em-
ployee is not responsible therefor," provided he has used due
care in procuring competent and fit servants.-S. C......
12. Question of notice to railroad corporation of unsafeness of engine.—
If a railroad employs an engine, which from its make and construc-
tion, is unsafe, and knew thereof, or would have known thereof, by
the exercise of reasonable care and diligence, it would be respon-
sible to one of its servants for injuries caused by such defect, in make
and construction, after it was known, or ought to have been known
to the railroad, if the defect was unknown to the servant; but the
railroad is not chargeable with notice of the unsafeness growing
out of the make and construction, from the use of such engine for
several years. This would be a circumstance for the jury to consider
in determining the question of notice, but it does not raise a legal
presumption of notice.-S. C.............
1. Conditional sales. -Under a conditional sale, with a reservation to
the vendor of the right to repurchase on certain specified terms,
the law requires promptness and precision on his part, in the asser-
tion of his reserved right, especially when the purchaser pays a fair
price for the property.-Beck v. Blue...
2. Same. If the contract itself in such case specifies no time within
which the vendor is to exercise the right reserved to him, the law
requires that he should exercise it within a reasonable time.-S. C. 32
3. Same. Although the conduct and declaration of the purchaser,
in admitting and recognizing the vendor's right to purchase as
still continuing, may excuse the latter's failure to exercise his right
for a period of ten years, up to the death of the purchaser yet it
does not excuse his failure to assert his right against the ad-
ministrator for nearly twelve months after his appointment, and
eight months after he had sold the property.-S. C.......
4. Contract of sale; respective duties of vendor and vendee.—A contract
of sale is perfect, when all the terms are agreed upon by the
parties, and they mutually bind themselves to perform their
respective obligations imposed thereby, and if the article is con-
tracted to be sold at a certain place, that, in the absence of any ex-
press stipulation in the contract, is the place of delivery; and the
vendor is not required to deliver the article sold, before payment,
or an offer to pay the purchase-money, there being no express
stipulation in the contract to the contrary.-Offutt v. Wells...............
5. Same. If the vendor brings suit on such a contract before a de-
livery, in order to recover, he must prove an offer, or a readiness
to deliver the thing sold, at the place, and within the time the con-
tract stipulates; and if the vendee brings suit to recover damages
for a failure to deliver goods sold for cash, at the place, and within
the time stipulated, or fixed by law, he must, in order to recover,
prove that he paid, or offered to pay, the vendor the purchase-
money, or give some good excuse for not making the offer.-S. C.. 199
6. Accounts to be created, not subject of valid sale.—A mere possibility,
or expectancy in, or growing out of property, can not be the subject
of a valid sale, and the transfer of accounts to be made in the prac-
tice of medicine, in certain specified years, by a physician to A., does
not convey to A. such a title or interest in the accounts when cre-
ated, as would enable A. to maintain an action thereon in his own
name.-Skipper v. Stokes......
7. Personalty; what necessary to make a valid sale of, in respect to
identity.—The full legal title to personalty does not pass by a con-
tract of sale, where the identity of the property contracted to be
sold is not ascertained by the contract, nor capable of identification
by parol evidence.-Browning v. Hamilton, use, &c......
8. When a contract of sale is not conditional.-Where L. delivers the
possession of certain slaves to W., at a fixed price, agreed to be
for paid them, with the stipulation that the purchase-money should
be paid at a future day, and that on its payment, the vendor should
make "proper titles" to the wife of the vendee, this was held not
to be a conditional sale, but a transfer of the property with a se-
curity intended to operate as a chattel mortgage.-Weaver v. Lapsley 601
1. Scire facias to revive decree; when not allowed. —A decree rendered
against an administrator, on a settlement of his administration,
can not be revived by scire facias, in favor of a distributee of the
estate, against the personal representative of such administrator;
and such a proceeding will be quashed on appeal.-Hurst v. Wil-
liamson..
1. Under § 2240 of the Code, (Revised Code, § 2642,) a transferred
judgment may be the subject of a set-off, in the hands of the owner,
whether he have the legal title on not. (BYRD, J., dissenting.)—
Skipper v. Stokes.....
1. Damages; action for.-Before "head of a family" can bring an
action for damages against the sheriff, for selling property exempt
by law, it must be shown that the affidavit prescribed by the statute,
had been duly made by him and exhibited to the officer.- Gamble v.
Reynolds.....
237
2. Fees and allowance for feeding prisoners; act of December 7th,
1866, relating to Barbour county.-The act of December 7th, 1866,
entitled "an act to allow the officers of Barbour county to charge
and receive fifty per cent. on the fees now allowed by law in the
Code of Alabama," (Sess. Acts, 105,) does not increase the compen-
sation of the sheriff of Barbour county fifty per cent. for victualing
prisoners in jail in criminal cases.-Feayin v. Comptroller,........ 516
1. Manumission of slaves under the proclamation of President Lin-
coln, of September 22d, 1862; effect of.-"The proclamation of
President Lincoln, issued by him, as 'President of the United States
and Commander-in-Chief of the Army and Navy thereof,' declaring
the universal manumission of all persons held as slaves within the
seceded States,-held, to have been a war measure, and of no opera-
tive effect until carried into execution by force of arms."- Weaver v.
Lapsley.....
2. Emancipation; trial of the right of property.-The emancipation
of a slave, after a levy upon him, and the institution of proceedings
to try the right of property, does not preclude a recovery by the
plaintiff.-Madden v. Hooper, Adm'r......
1. A remedial statute, not penal, of force during entire day of approval.
"A public statute, remedial in its character, and not prescribing
punishments, is of force during the entire day of its approval, and
the law in reference thereto, does not recognize any fraction of a
day." (Held, further, on this point, "that the decisions are not en-
tirely harmonious.")-Word v. Fort......
1. Summary judgment; discontinuance.-A. gave notice that a motion
would be made for a summary judgment against the personal rep-
resentative of B. on Friday, the 30th November; the motion was
not made until the day after, (December 1st,) when judgment by
default was rendered against the defendant, the record not showing
that the motion was submitted at the proper time, and continued
to December 1st,-held, that the motion was, by operation of law,
discontinued.-Barclay, Adm'x, v. Barclay..
2. Same; by default, or nil dicit.-Where a judgment by default, or
nil dicit, is rendered upon such a motion, the record must, notwith-
standing, show the liability of the defendant for the debt, or de-
mand, and that the facts were proved, which gave the court juris-
diction; and the court, upon the failure of the defendant to appear
and make up an issue, to be tried by a jury, may receive proof of
the requisite facts, and render judgment without the intervention
of a jury.-S. C......
3. Same; notice of motion.-The notice given in such a case, can not
be looked to by an appellate court, unless it is made a part of the
record by proper reference.-S. C...........
4. Same; against personal repressntative.-The remedy by motion for
a summary judgment by a surety, against the personal representa-
tive of the principal debtor, is given by the act of December 6th,
1861.-S. C..
1. Tender, in kind. - In promises to pay in chattels, or in paper money
of fluctuating value, a tender in kind of the thing stipulated to be
paid, can only be made on the day appointed for payment, and can
not be made before or after the day, to be effectual as a tender.-
Powe's Adm'r v. Powe.......
Toulman and Wife v. Sager.
1. Conversion of chattels ; misjoinder of defendants.—While it is clear,
that he who sells, and he who buys the chattels of another, which
has been wrongfully converted, may both be sued separately, for a
conversion; yet, where the purchaser buys, bona fide, and without
a knowledge of the conversion by the seller, it seems to be the better
opinion, that they can not be sued jointly.—Larkins & Moore v.
Eckwurzel.......
2. Trover will not lie where goods are taken by an armed force, with-
out any negligence or complicity on the part of the bailee.-Abra-
ham & Bro. v. Nunn.......
3. Action for conversion will not lie in this case.-The written instru-
ment, and the evidence adduced in this case, do not so identify
thirty bales, or fifteen thousand pounds of cotton, as to invest the
appellee with a title, under which he can maintain an action for
their conversion.-Browning v. Hamilton, use, &c...
1. Parol trust.--The provisions of the statute, Code, (1852,) § 1320,
(Revised Code, § 1590,) were intended to prevent fraud, and in
avoidance of fraud, a parol trust may be engrafted upon an instru-
ment which purports to be absolute on its face, notwithstanding
the prohibition of the statute; and in order to constitute fraud,
and suspend the operation of the statute, there need not be deceit,
or misrepresentation, or evidence that the subsequent failure to
fulfil the trust was the result of an original fraudulent design; and
the failure to execute such a trust, from whatever cause, is a con-
structive fraud against which equity will grant relief.-Barrell v.
Hanrick, Adm'r et al.......
4. Sale by trustee under order of court; what is necessary to make valid.
Where a trustee appointed by the court, and clothed with a trust
created by the court, is, upon an application for that purpose, or-
dered to sell land, the legal title to which has been vested in him
by the court, for the purpose of the trust, and he sells and conveys,
no title can pass by any conveyance made by the trustee to a pur-
chaser, until the sale is confirmed by the court, unless the order
authorizes him to convey when he sells.-(Per Byrd, J.)-Witter v.
Dudley.....
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