and plaintiff, who was chief of police of said city, and was also a member of the fire company, as was his duty to do, proceeded immediately to said house on fire; and acting in the line of his duty as a member of said fire company, as well as chief of police, he preceded the hose carriages, in order to notify parties with vehicles or other obstructions in the streets to make way for the hose carriages to pass; and, coming to said crossing, he attempted to drive around the ends of the cars thereon, and, in making the short turns, the wheels of the buggy struck the rails of the defendant's track, and, by the sudden jolting of the buggy caused thereby, he was thrown with great force to the ground, and in the fall his leg and hand, as well as other portions of his body, were badly bruised and injured, from which he has suffered great pain and distress, incurred expense of healing, and of repairing his buggy and harness, also broken and injured thereby. Plaintiff avers that his said injury, suffering, and loss were caused by the wantonness, recklessness, or willfulness of defendant's agents or servants, in failing or refusing to remove said cars out of said street crossing, after becoming aware, as plaintiff avers they were, that a house was on fire."

The defendant demurred to the fourth, fifth, sixth, and seventh counts upon the following grounds: "(1) For that it states no cause of action. (2) For that it appears that the defendant, in operating its railroad over and across the streets of Anniston, must, of necessity, obstruct said streets for a time, and it is not alleged that said street was obstructed in an unlawful or improper manner. (3) For that it does not appear that the temporary obstruction of Glen Addie street by defendant, in the operation of its railroad over and across said street, is either a public or private nuisance, entitling the plaintiff to complain thereof. (4) For that notwithstanding the defendant might be liable on a proper action as for an inconvenience to a public or private business, if it obstructed the streets of the city for an unreasonable length of time, it does not appear that it is liable to the plaintiff in this form of action for personal injuries received from knowingly driving against or colliding with its cars, at a time when the street was known by the plaintiff to be occupied by the defendant in the prosecution of its legitimate business as a common carrier. (5) For that it is stated as a conclusion that the defendant negligently permitted its cars to stand on its track in Glen Addie street, but no sufficient facts are stated to authorize the court to conclude that defendant was thereby guilty of negligence. (6) For that it fails to set out in full the ordiLance of the city of Anniston, which it is alleged defendant negligently violated. (7) For that only certain sections of said ordinance are set out in said complaint, and it is not set forth in hæc verba or according to its legal effect, so that the court may determine

from the facts stated the proper scope and effect of said ordinance. (8) For that it fails to state the name or names of the agent or agents or servants of the defendant whose negligence, it is alleged, caused the said injuries." To the seventh count the defendant demurred upon the following additional grounds: "(9) For that no sufficient facts are stated to show that defendant was guilty of wanton, reckless, or willful negligence. (10) For that it is stated as a conclusion that the defendant was guilty of wanton, reckless, or willful negligence, whereas the facts stated show, at most, the defendant was guilty merely of simple negligence. (11) For that it does not appear that the plaintiff was in a position of peril, and that, after seeing and realizing the peril of the plaintiff, the defendant or its agents knowingly or intentionally inflicted injuries or caused injuries to be inflicted upon him."

The defendant's demurrers to each of the counts were overruled. Thereupon the defendant filed the following pleas to the fourth, fifth, sixth, and seventh counts of the complaint: "(1) That it is not guilty of the matters and things therein alleged. (2) And, for further answer to the complaint in said cause, defendant says that the plaintiff, by his own negligence, contributed proximately to the injuries alleged to have been received. (3) And, for further answer to the complaint, defendant says that the plaintiff ought not to have or recover damages of the defendant, because it says that the plaintiff, by his own negligence, contributed approximately to the injuries he is alleged to have received, in this: That the plaintiff approached said crossing in a buggy, driving a horse at a rapid rate, and attempted to pass over said crossing while driving rapidly; whereas, if he had slowed up and passed over at a moderate rate of speed, he could have passed over safely and without injury to himself or his vehicle. (4) And, for further answer to the complaint, defendant says that the plaintiff ought not to have and recover damages of the defendant, because it says that the plaintiff contributed proximately by his own negligence to the injuries alleged to have been received, in this: That the plaintiff approached said crossing in a buggy driving a horse in a full run, urging said horse, and making it go as rapidly as possible, and attempted to dash across defendant's track while going at such rapid speed, and, in this way and on this account, was thrown from his buggy, and thereby received the alleged injuries to himself and his vehicle; whereas, if he had approached said crossing at a moderate rate of speed, he might have crossed in safety; and defendant avers that a fire-hose carriage and driver, which immediately followed plaintiff, did cross said track in safety, although defendant's cars remained in the same position as before. (5) And, for further answer to the complaint, the defendant says that the plaintiff ought not to have and recover dam

ages of the defendant, because it says that the plaintiff contributed proximately, by his own negligence, to the injuries alleged to have been received, in this: That the plaintiff approached said crossing in a buggy, driving a horse, and urging it forward at a rapid rate of speed, when the presence of defendant's cars at or near said crossing was visible and obvious to be seen by the plaintiff, and attempted to dash across said crossing with his horse going at a rapid rate of speed, although cautioned and warned by defendant's agent W. J. Sykes not to attempt to pass said crossing in such manner; whereas, if he had slowed up, and had passed over at a moderate rate of speed, he could have passed in safety, without injury to himself or his vehicle." To the second plea the plaintiff demurred upon the ground that said plea states the mere conclusion of the pleader, and states no facts which constitute negligence on the part of the plaintiff. This demurrer was sustained. To the third, fourth, and fifth pleas the plaintiff demurred upon the following grounds: "(1) Because the plaintiff had a right to approach said crossing, driving rapidly, and to urge his horse forward at a rapid rate of speed as he approached said crossing; and (2) because it is not averred in said plea that plaintiff knew the danger from the presence of defendant's cars at or near the crossing, or that the danger therefrom, and by reason thereof, was plain and obvious. (3) Said third and fourth pleas do not aver that plaintiff had knowledge of the danger from the presence of defendant's cars in the crossing, or that the plaintiff failed to observe ordinary care to avoid the damage after becoming aware of the danger. (4) Said third and fourth pleas do not aver' that plaintiff drove rapidly or carelessly after the danger from the presence of the car in or near the crossing became plain and obvious to him. (5) Said fourth plea avers that, if plaintiff had approached said crossing at a moderate rate of speed, he might have crossed in safety; whereas said statement is insufficient, as containing no averment of fact or material facts; and the mere fact that it was possible or that plaintiff might have crossed in safety does not constitute contributory negligence. (6) Said third and fifth pleas aver that if plaintiff had slowed up, and passed over the crossing at a moderate rate of speed, he could have passed over safely; whereas said statement is insufficient for containing no material averment of fact, and that plaintiff could have passed over in safety does not constitute contributory negligence."

The demurrers to the third, fourth, and fifth pleas as answers to the seventh count of the complaint were sustained, and the demurrers to said pleas as answers to the other remaining counts of the complaint were overruled. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court on the pleadings.

John B. Knox, for appellant. T. C. Sensabaugh, for appellee.

COLEMAN, J. The action is in case, and was instituted by the appellee to recover damages for personal injuries sustained, and for damage done to personal property. Including counts added by amendment, the entire complaint consisted of seven counts. A demurrer was sustained to the first count, and plaintiff withdrew the third count. This appeal is prosecuted from the rulings of the court upon the pleadings, adversely to the appellant, the defendant in the trial court.

The material questions raised by the grounds of demurrer to the fourth, fifth, and seventh counts of the complaint are whether the injury sustained by plaintiff resulted proximately from the wrongful or negligent conduct of the defendant, as averred in these several counts. Pretermitting for the present the question as to whether the ordinance of the city of Anniston is sufficiently stated in the second count, each of the counts under consideration bases the cause of action upon the violation of certain ordinances of that city. The second count avers the existence of an ordinance which prohibited any railroad from allowing its cars to stand upon the public crossing of the streets for a longer period than five minutes. The fourth count undertakes to set out the city ordinance, which has a provision similar to that averred in the second count. The fifth count sets out the city ordinance, which declares it to be unlawful, in placing cars or trains near any street crossing, "to fail to leave space free from obstruction, less than the full width of the roadway of the street at such crossing." The seventh count sets out an ordinance which declares that "no person shall obstruct any street in any manner calculated to delay any company in carrying their apparatus to or from any fire," etc. It may be conceded for the purpose of the argument that each of these counts avers a violation by the defendant of the several municipal provisions set out in the several counts. The counts now under consideration show, however, that plaintiff approached the crossing in his buggy, and found it obstructed by the cars of the defendant, contrary to the city ordinances; that there were double tracks, both of which, it seems from some of these counts, were occupied by the cars of the defendant. He undertook to drive around these cars, and make "short turn" in order to get across; and, in doing so, his buggy collided with the rails of defendant's track so violently as to throw him upon the ground, to his personal injury.

The defendant is liable for all damage resulting proximately from a violation of valid city ordinances made for the protection of the public, but is not liable for damages which do not result proximately from such causes; nor can it be said that a violation of a statute or ordinance made for the benefit or protection of certain persons or classes gives a right

of action, under all circumstances, to persons or classes not within its purposes. The defendant's cars remained stationary, and the injury resulted from the attempt of the plaintiff to cross the tracks in their obstructed condition. In the case of Land Co. v. Mingea, 89 Ala. 521, 529, 7 South. 666, we said: "It is not negligence per se for one who knows the dangerous condition of a highway to persist in traveling over it. He may lawfully proceed to do so if the act, under the circumstances of the particular case, does not evince a want of ordinary care on his part." This case cited that of City Council of Montgomery v. Wright, 72 Ala. 411. In the latter case the facts are that there had been a washout extending about two feet or more into the sidewalk, but there was a space of about seven feet, which furnished a safe way for pedestrians, and which was in constant use as such. In attempting to pass along the sidewalk at night, the plaintiff, who had knowledge of the defect, stepped into the washout, and was injured. This court held that the plaintiff was not guilty of negligence per se in attempting to walk along the sidewalk, but that it was a question for the jury. The decisions are not altogether in harmony as to what constitutes the proximate cause of an injury, resulting from obstructions of a highway. Turnpike Co. v. Jackson, 44 Am. Rep. 274, and note, p. 278; Turner v. Buchanan, 42 Am. Rep. 485; 16 Am. & Eng. Enc. Law, pp. 436, 440, and notes; Railway Co. v. Staley, 41 Ohio St. 118, 52 Am. Rep. 74. Under our construction, the complaint does not present the case of injury resulting to a person who abandons the highway, and seeks a crossing by some other route. The counts other than the seventh clearly show that defendant had a double track, and that on one side its cars extended from one direction into the crossing, and on the other side its cars extended into the crossing from an opposite direction, and that there was sufficient space left of the public crossing over which plaintiff could pass, by driving in front of the cars on one side, and then, by making a short turn between the cars, he could pass in front of the cars on the other track, and never leave the highway. Putting this construction on these several counts, the action is brought within the influence of the Cases of Mingea, supra, and Wright, supra, and showed a good cause of action, but subject to the defense of contributory negligence.

The seventh count charges no more than simple negligence. The averment that the failure to remove the cars was wanton negligence is a mere conclusion of the pleader, not authorized by the facts averred. It is not fairly inferable from the facts averred that the defendant placed the cars on the public crossing for the purpose of causing injury, or failed to remove them from any reckless indifference to consequences, being conscious that such failure would probably result in injury. In fact, it does not appear that the

cars could have been removed, after notice, before plaintiff was injured. Railroad Co. v. Anchors (Ala.) 22 South. 279; Railroad Co. v. Burgess, Id. 169.

Again, the ordinance set out in this count declares that "no person shall obstruct any street in any manner calculated to delay any company in carrying their apparatus to or from any fire." The plaintiff bases his right of action in the seventh count upon the provision of this ordinance, but nowhere alleges that any company was obstructed in carrying its apparatus to or from the fire; nor does it show that the damage resulted from the cause that any such company was thereby obstructed. Good pleading requires the pleader to set out so much of an ordinance as is relied upon to support the cause of action, and not the mere conclusion of the pleader. In this respect the second count should be amended.

Under the recent decisions of this court, plaintiff, not being an employé, was not required to aver the name of the agent of the defendant by whose negligence or misconduct the alleged injury was sustained. Birmingham Railway & Electric Co. v. City Stable Co. (Ala.) 24 South. 558, and authorities cited. Reversed and remanded.

1. The conclusion of the chancellor on the facts will not be reviewed where it appears that there was evidence before the court which is not in the record.

2. Complainant in a bill for a partnership accounting cannot have a decree ascertaining the respective liabilities of the partners, when the partnership proven is different from that alleged.

Appeal from chancery court, Pike county; Jere N. Williams, Chancellor.

Bill by Willis C. Wood against J. P. Wood and others. From a decree dismissing the bill, complainant appeals. Affirmed.

M. N. Carlisle, John Gamble, Sr., and A. C. Worthy, for appellant. Brannen & Samford, W. J. Samford, and Hubbard & Hubbard, for appellees.

BRICKELL, C. J. It is unnecessary, as will hereafter be seen, to consider the vast mass of evidence contained in the record in this cause, and to review the correctness of the chancellor's finding on the facts. The bill was filed by appellant, Willis C. Wood, claiming that on August 1, 1881, a co-partnership was formed between himself and J. P. Wood, F. S. Wood, and B. W. Wood, under the name of J. P. Wood & Co., by the terms of which complainant was to have a one-half interest therein, and the defendants the other half, which partnership was dissolved on August 1, 1884; and praying for the appointment of a receiver, and an accounting between the part

ners, that a lien be declared in favor of complainant for his reimbursement on certain designated property into which, it was alleged, money and property of the firm, fraudulently misappropriated by defendants, had been converted, and that a mortgage, which had been given to complainant by J. P. Wood, M. A. Wood, and F. S. Wood in consideration of his undertaking and promising to pay all the indebtedness of the firm to the extent of $17,000, be foreclosed. The answer of the defendants denied the material allegations of the bill, and especially denied that there ever was such a partnership as that alleged in the bill; each of the defendants, except J. P. Wood, denying that he was, or ever had been, a member of said partnership, and averring that said partnership was composed of complainant and J. P. Wood only. Upon a reference to the register he found and reported that the partnership was begun on August 1, 1882, and that the members of the firm were complainant, J. P. Wood, M. A. Wood, F. S. Wood, and B. W. Wood; stated an account between the partners, showing a balance due complainant; and found a balance of $2,791.79 due on the mortgage. On August 6, 1895, the cause was submitted for decree on the exceptions of both parties to the register's report, and upon a consideration of all the evidence the chancellor decreed that M. A. Wood, F. S. Wood, and B. W. Wood were not members of said firm of J. P. Wood & Co., sustained defendants' exceptions, and overruled those of complainant, and overruled the report in toto. On the same day,-February 5, 1896,-and in term time, on a submission for final decree, a decree was rendered dismissing the bill.

It is a settled rule that the conclusion or finding on the facts by the chancellor will not be reviewed when it affirmatively appears that there was evidence before the court which is not set out in the record. Winter v. City Council, 79 Ala. 490; Toon v. Finney, 74 Ala. 343. The certificate of appeal recites that "the foregoing pages numbered from one to eight hundred and eighty-eight contain a full and complete transcript of the record and proceedings in said cause, except the answers of J. M. Hamil to the interrogatories filed by respondents, which have been lost from the record"; and the note of submission shows that the deposition of Hamil was before the chancellor, but it does not appear in the record. We have no means of knowing the nature of this testimony, and hence must presume, as insisted upon by counsel, that it was sufficient in character and weight, considered in connection with all the other evidence, to justify the conclusion of the chancellor that the firm of J. P. Wood & Co. was composed of complainant and J. P. Wood only; that there was nothing due on said mortgage, or that its conditions had been performed; and that there had been no misappropriation of firm assets, or conversion thereof into other property, as charged in the bill; and to justify the overruling of the register's report. And, having

found that the firm of J. P. Wood & Co. was composed of complainant and J. P. Wood only, the chancellor did not err in dismissing the bill. While, upon a bill for an accounting between partners, and an adjustment of their respective liabilities, a decree cannot be refused simply because it is found that nothing is due the complainant, yet the complainant in such bill is not entitled to any decree ascertaining the respective liabilities of the partners when the partnership proven is different from that alleged. The variance between the allegations and proof as to the persons composing the firm of J. P. Wood & Co. was fatal to any relief, and justified the decree dismissing the bill in term time. Affirmed.

(119 Ala. 496)

HERZBERG et al. v. HOLLIS. (Supreme Court of Alabama. Oct. 29, 1898.) JUDGMENT-EXECUTION-SALE-PRESENCE OF DEFENDANT-ESTOPPEL.

An execution defendant is not estopped, by his presence at the sale, without interposing an objection, to avoid the sale as being on a dormant judgment, he not knowing the judgment was dormant.

Appeal from circuit court, Etowah county; J. A. Bilbro, Judge.

Action by Herzberg Bros. and others against Joseph P. Hollis. There was a judgment for plaintiffs, and from an order quashing execution and setting aside the sale they appeal. Affirmed.

George D. Motley, for appellants. Amos E. Goodhue and J. E. Blackwood, for appellee.

COLEMAN, J. The appeal is prosecuted from an order of the circuit court quashing an execution and setting aside a sale of land made by virtue thereof, issued from the circuit court of Etowah county against the appellee, Joseph P. Hollis. The motion and evidence introduced on the trial show that the judgment was recovered on the 24th day of July, 1886, and execution issued on the 2d day of September, 1886; that no other execution issued thereon until the 24th day of May, 1897, more than 10 years after the first execution had become functus; and that the judgment has not been paid. The judgment was recorded in the record book of liens and judgments in the probate office on the 11th of August, 1887, more than 12 months after the rendition of the judgment. Code 1896, $$ 1922, 1924, 1925; Enslen v. Wheeler, 98 Ala. 200, 13 South. 473. The defendant in execution moved the court to quash the execution and vacate the sale at the first term of the court thereafter, and within less than two months after the sale. Though a sale by vir tue of an execution issued on a dormant judgment is not void, it is voidable at the election of the defendant in execution, seasonably expressed, unless by some act he is estopped from asserting the right. Gardner v. Railroad Co., 102 Ala. 635, 15 South. 271; McCall v.

Rickarby, 85 Ala. 152, 4 South. 414; Cowan v. Sapp, 74 Ala. 44; Ponder v. Cheeves, 90 Ala. 117, 7 South. 512; Slater v. Alston, 103 Ala. 605, 15 South. 944. It seems that the purchaser at the sale was interested as plaintiff in execution. The only fact brought forward as evidence of an estoppel or waiver is that plaintiff was present at the sale, and interposed no objection. He testifies that he had no knowledge at the time that the execution was issued on a dormant judgment. Certainly, the plaintiff and purchaser was chargeable with this information. There is no error in the record. Affirmed.

(120 Ala. 231)

CENTRAL OF GEORGIA RY. CO. v. WIND

HAM.

(Supreme Court of Alabama. Nov. 5, 1898.) EXEMPLARY DAMAGES-INSTRUCTIONS-APPEAL

Where the evidence in an action for damages for overflowing plaintiff's lands does not make a case for exemplary damages, the failure to charge that they cannot be recovered is prejudicial error.

Appeal from circuit court, Dale county; J. M. Carmichael, Judge.

Action by W. P. Windham against the Central of Georgia Railway Company to recover damages for injury to plaintiff's property and to the health of his family, alleged to have been caused by the negligence of the defendant in the construction of its roadway along and by the side of plaintiff's property. The cause was tried upon the plea of the general issue. Upon the trial of the cause it was shown that the defendant constructed its roadway adjacent to the property owned by the plaintiff; that in so doing there were constructed excavations; and that by reason of the peculiar construction of the roadway, together with the ditches and excavations made by the defendant, the lands and premises of the plaintiff were overflowed, and the plaintiff sustained damages to his property and otherwise. The evidence for the defendant tended to show that the overflows complained of were the result of natural causes, and occasioned by the unusual rain and freshets. At the request of the plaintiff the court gave to the jury, among others, the following written charge: (5) "If the jury believe from the evidence that defendant has, as alleged in the complaint, and at the time therein named, caused water to flow on plaintiff's grounds, and stand under his house, as alleged in the complaint, and that said water would not naturally have flowed over plaintiff's lands, then the verdict must be for the plaintiff." To the giving of this charge the defendant duly and separately excepted, and also separately excepted to the court's refusal to give, among other charges requested by it, the following: (1) "The court charges the jury in this case that the plaintiff cannot recover exemplary damages." There were verdict and judgment for the plaintiff. The defendant appeals, and assigns

1. As paper executed without consideration for the payee's accommodation becomes obligatory only when the latter negotiates it, whereupon the transferee becomes the real payee as against the maker, Code 1886, § 2594, giving the payor of notes or bonds the same defenses against a transferee which he had against the payee before notice of the assignment, does not apply to accommodation paper.

2. A partner has no authority to execute accommodation paper in the name of the firm.

Appeal from circuit court, Henry county; J. W. Foster, Judge.

Action by Henry Talmadge & Co. against W. W. Milliken and another, partners as Milliken & Meigs. From a judgment for defendants, plaintiffs appeal. Reversed.

The original complaint declared upon the obligations sued on as promissory notes. An amended complaint was filed, by leave of the court, declaring upon the obligations as bonds. The defendant Meigs interposed a special plea of non est factum, denying the execution of the bonds. The defendants jointly filed three pleas, of which the first two were pleas denying a consideration for the bonds sued on, and their third plea averred that the bonds sued on were signed and delivered on Sunday. The plaintiffs filed replications to the pleas of the defendants, there being a separate replication to each joint plea. The replications averred that the bonds sued on were executed by the appellees at the request of one Burbage, as an accommodation to him, to enable him to use the bonds as a means of raising or borrowing money; that the bonds were, for that purpose, hypothecated to the plaintiffs, by said Burbage, as collateral security for a loan of money made at the time the bonds sued on were transferred. The replications showed the amount of money that was advanced upon the security of said bonds, and the date when the transfer of said bonds was made and said money was loaned. The de