April 10, 1884, on a bill brought by Samuel G. Adams against appellant to enforce a vendor's lien. Before the sale appellant took an appeal from the decree, but did not give bond to supersede it. The decree was reversed in July, 1885. The decree not having been superseded, as provided by the statute, its execution, notwithstanding the appeal, was the legal right of the complainant therein. When a party becomes a purchaser of land sold under a decree rendered in his favor, he acquires a defeasible title, which will be defeated by a subsequent reversal for errors or irregularities in its rendition. A solicitor of record stands in the same position as the party. But if a stranger to the decree purchases, whether prior to or pending an appeal, his title will not be affected or impaired by a subsequent reversal, the court having jurisdiction to render the decree. Marks v. Cowles, 61 Ala. 299; Phillips v. Benson, 82 Ala. 500, 2 South. Rep. 93. The equity of complainant's bill, therefore, rests upon the allegation that Lewis E. Parsons, Jr., who was the solicitor of record of the party in whose favor the decree of sale was rendered, was really the purchaser of the land at the register's sale, and her title to relief depends on proof of the allegation.

The record shows that the register made a conveyance to Benson, who claims to have been the purchaser, bearing date of the day of sale, and acknowledged its execution before the judge of probate, August 12, 1884. On the day of sale the register filed in office a report, in which he reported that Benson was the purchaser, and that he made and executed to him a deed of conveyance, and the sale was confirmed as made to Benson at the succeeding term of the court. These facts and proceedings make a strong prima facie case in favor of the defendant as the purchaser, which it is incumbent on complainant to overcome. The only disproving evidence which she introduces is that of the register, who testifies that Thomas, who bid off the land, said to him: "Make the deed to Lewis B. Parsons, Jr., leave it at the bank, and the money will be paid. This is denied by Thomas, who says that he made this remark to the register at a previous sale in July, which failed because not legally made. Thomas and the defendant both testify that the land was bid off by Thomas for defendant, who paid the register his costs, and arranged the balance of the purchase money with Parsons, by giving him a negotiable note for the amount. And defendant further testifies that he had no conversation and made no arrangement with Parsons in reference to purchasing the land prior to the sale. The evidence fails to establish the claim of complainant to relief. Affirmed.

WESTERN RAILWAY v. SISTRUNK.

(Supreme Court of Alabama. December 4, 1888.)

1. RAILROAD COMPANIES-INJURY TO STOCK-STATUTORY REQUIREMENTS-NEGLIGENCE. Code Ala. 1876, §§ 1699-1702, which render a railroad company liable for injuries to stock where such injuries result from its failure to comply with the statutory requirements, or other negligence of the company, do not require such negligence to be the sole cause. It is sufficient if it materially contributes to the injury. 2. SAME.

It is sufficient, also, if the failure of the company to comply with the statutory requirements, such as ringing the bell, or blowing the whistle, reasonably contrib utes to the injury, there being no question of plaintiff's contributory negligence. 3. SAME-SPEED OF TRAIN.

But it is error in such case, where the stock was injured at a crossing near a station, to charge that, if the locomotive was running at a very rapid rate of speed at the time the stock was struck, and the injury occurred because of this fact, the defendant would be liable, as the statute does not regulate the speed of trains when passing stations or crossings, except when entering a curve crossed by a public road, where the engineer cannot see at least one-fourth of a mile ahead. 4. SAME-ACTION FOR INJURY-PETITION.

Under Code Ala. 1876, § 1711, requiring the petition in an action against a railroad company for injuries to stock to aver the time and place of the alleged injury, an

allegation that it occurred "on or about September 20, 1887," and "at a place on said railroad about 75 or 100 yards distant from Cowles Station, Macon county," is sufficient.

5. SAME EVIDENCE.

Under this allegation, it was not error to admit evidence showing that it occurred "on or about September 18th, "or"between the 16th and 20th of September," within 150 yards of the station on the line of the railroad.

6. PLEADING AMENDMENT-SUBSTITUTION OF PARTY.

An amendment to a complaint and summons showing that the defendant is a body corporate, and is sued in its corporate capacity, does not operate to substitute a new party defendant.

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Appeal from circuit court, Macon county; JAMES W. LAPSLEY, Judge. Action by J. E. Sistrunk against the Western Railway of Alabama to recover damages for the injuring of stock by a train running on the road of said The complaint was as follows: "The plaintiff claims * company. damages for this: The said defendant, a railroad company, and operating a railroad in this state, on or about the 20th day of September, 1887, negligently injured by its locomotive or cars then running on said railroad two mules, of the value of five hundred dollars, the property of the plaintiff, at a place on said railroad about seventy-five or one hundred yards distant from Cowles' Station, in this county; and plaintiff avers that said station was at the time a regular station," etc. The defendant made a motion to strike the cause from the docket, "because neither the summons nor complaint discloses a legal defendant to said case," and "because the defendant named in the summons and complaint is not such a being as the law authorizes to sue or be sued." The court overruled this motion, and allowed the plaintiff to amend his summons and complaint, and the defendant excepted. Thereupon the defendant demurred to the summons and complaint, as amended, because the summons and complaint, as amended, was "a variance between the summons and complaint, as amended, in the description of the defendant sued," and because the time and place of the alleged injury were not averred with sufficient certainty. The court overruled this demurrer, and the defendant excepted.

The testimony of the case, as shown by the bill of exceptions, tended to corroborate the allegations of the complaint as to the time and place of the accident. One of the witnesses introduced by the defendant, one Mc Waters, testified that he was running an engine for the defendant on its road some time between the 16th and 20th of September, 1887; that it was at night, and was a very dark night; that the engine was running about 12 or 15 miles an hour; that when he was about 150 yards from Cowles' station, near the private crossing of the plaintiff, his fireman, who was on the left side of the engine, called out to him to look out, and that just then he saw a mule jump off the track, about 15 yards in front of the engine; that he immediately reversed the engine, but that he had scarcely reversed the said engine when another mule jumped on the track immediately in front of the engine, and was caught up by the engine on the front part of the engine; that it was only the second mule, as spoken of above, that he saw on the track, which was hurt; that he blew the whistle when about a quarter of a mile from the station, and rang the bell, as required by law; that he did all in his power to prevent said accident to said mules; and that his engine was in good repair. The witness was going on to testify, and said that "at the time of the accident his fireman told him—” The plaintiff here stopped the witness, and objected to his testifying to what the fireman said to him. The defendant then offered to prove by said witness that “immediately after running into said second mule, and while he was lying upon the bumper of the engine, the fireman, who was on the left side, said to him, 'You have knocked off one on this side."" But the court refused to allow the witness to testify to this, whereupon the defendant excepted to this ruling by the court. There was testimony introduced by plaintiff tending to prove that the engine was running at a very rapid rate of speed. The evi

dence was rebutted by evidence for the defendant tending to prove that the engine was running at 12 or 15 miles an hour.

The plaintiff asked the following charges in writing, which were given by the court, and to the giving of which the defendant excepted. (1) "If the jury believe from the evidence that at [the time] or before the locomotive struck the mules the engineer was not keeping a strict lookout ahead, and that such failure to keep a strict lookout materially contributed to the injury to the mules, then they must find for the plaintiff." (2) "If the jury believe from the evidence that the locomotive was running at a very rapid rate of speed at the time the mules were struck, and because of that fact the mules were injured, then they must find for the plaintiff." (3) "If the evidence does not show that the engineer blew the whistle or rung the bell, or had it done at least onefourth of a mile from the station, and did not continue to blow the whistle or ring the bell at short intervals, until the locomotive had reached the station, and that such omission reasonably contributed to the injury to the mules, they must find for the plaintiff." The defendant then requested the court to give the following charges in writing, and, on the court's refusing to do so, excepted to each refusal separately: (a) "If the jury find from the evidence that the train was running from 12 to 25 miles an hour at the time of the injury; that the engineer was at his post keeping a proper lookout; that his engine and tender were properly manned, and supplied with good and sufficient headlight and brakes, and as soon as the mules were perceived upon the track, or approaching the track in such manner as to indicate to a reasonable man that they were about to come upon the track, the engineer did discover them, and used all means in his power known to skillful engineers, such as the application of brakes and the reversal of the engine, to stop the train,-then the defendant is not liable." (b) "If the jury believe the evidence they must find for the defendant." The rulings of the court on the motions, demurrers, evidence, and the giving and refusing of the several charges asked by the plaintiff and defendant, are now assigned as error.

George P. Harrison, for appellant. W. F. Foster and Abercrombie & Bilbro, for appellee.

SOMERVILLE, J. 1. The circuit court properly allowed the complaint and the summons to be amended so as to show that the Alabama Railway Company was a body corporate, and was sued in its corporate capacity. The amendment did not operate to substitute a new party defendant to the suit. It only added words of more accurate description. Insurance Co. v. Roberts, 60 Ala. 431; Railway Co. v. Propst, 83 Ala. 518, 3 South. Rep. 764. The demurrer to the complaint, and the motion to strike the cause from the docket, based on this supposed departure or variance in the pleadings, was properly overruled. The objections raised were fully obviated by the amendment.

2. The complaint, in our opinion, complied with the statute, and was sufficiently certain in averring the time and place of the alleged injury, as "on or about the 20th of September, 1887," and as "at a place on said railroad about seventy-five or one hundred yards distant from Cowles' Station, in Macon county." The purpose of this statutory requirement, in existence at the time of the alleged injury, (Code 1876, § 1711,) but now repealed, it seems, by omission from the new Code of 1886, (section 1150,) was "to inform the railroad officials with reasonable certainty as to the circumstances attending the alleged injury, so that they may act advisedly in the investigation of the case, either with the view of voluntary adjustment, or of defense at law." Railroad Co. v. Carloss, 77 Ala. 443. The averments practically accomplished this purpose, and the ground of demurrer raising the objection of uncertainty was properly overruled.

3. In this view of the law, the action of the court was free from error in admitting evidence showing an injury to plaintiff's mules "on or about the v.5so.no.6-6

18th of September," or "between the 16th and 20th of September" in the year 1887, and within a hundred and fifty yards of Cowles' Station, situated on the line of defendant's railway. The evidence in question tended substantially to prove the allegations of the complaint as to the injury complained of in the action.

4. It is not clear from the record that the court committed error in excluding the statement of the witness McWaters, who was engineer in charge of the locomotive at the time of the accident, as to what the fireman said “immediately after" running into the second mule, and while it was lying upon the bumper of the engine. The facts in evidence do not show with sufficient certainty whether this exclamation, which seems to have had reference to an injury to a third mule, was so intimately connected with the act of injury to which it referred as to constitute it a part of the res gesta, or whether it was merely narrative of a transaction already past. Dismukes v. State, 83 Ala. 287, 3 South. Rep. 671; Railroad Co. v. Hawk, 72 Ala. 112. The onus is on the appellant, who challenges the correctness of the ruling, to satisfactorily show the error of which he complains.

5. If the failure of the engineer to keep a diligent lookout for obstructions on the track materially contributed to the alleged injury to the plaintiff's stock, this would be sufficient to impose a liability on defendant for the resulting damage, the plaintiff himself being free from fault. The requirement of the statute, that the damage to personal property for which a railroad is liable should result from its failure to comply with statutory requirements, or other negligence of the company, does not mean that this negligence should necessarily be the sole or immediate cause of the injury. It means nothing more than that the injury must be the natural and proximate consequence of the negligence. If the defendant's wrongful act is one of two or more concurring efficient causes, other than the plaintiff's fault, which co-operate directly to produce the injury, this, under the authorities, is all that is requisite to fasten a liability on him. The New Philadelphia, 1 Black, 62; 1 Shear. & R. Neg. § 10, note 2, and cases cited. This is all in substance asserted by the first charge given at the request of the plaintiff.

6. It is clearly the theory of these statutory requirements imposing on engineers of railroad companies the duty to ring the bell or blow the whistle under certain circumstances (Code 1876, §§ 1699-1702) that the proper and timely discharge of these duties will probably exert some influence in preventing injuries to persons and to live-stock. It may furnish warning to persons, and tend to frighten animals away from the track. Railroad Co. v. Munger, 49 Amer. Dec. 266, note, and cases cited; Railroad Co. v. Jones, 56 Ala. 507; Aycock v. Railroad Co., 6 Jones, (N. C.) 231; Railroad Co. v. Bayliss, 77 Ala. 429. If a failure of the engineer to comply with these statutory requirements reasonably contributed to the injury done plaintiff's stock, the defendant would be liable, there being no question of plaintiff's contributory negligence in the case. The third charge given at plaintiff's request, bearing on this point, was substantially correct.

7. The court erred, however, in giving the second charge requested by the plaintiff, which asserted that, if the railroad locomotive was running at a very rapid rate of speed at the time the mules were struck, and the injury occurred because of this fact, the defendant would be liable. The statute does not regulate the speed of railroad trains in passing stations or crossings, except when entering "a curve crossed by a public road," where the engineer cannot see at least one-fourth of a mile ahead. Here he "must approach and pass such crossing at such speed as to prevent accident in the event of an obstruction at the crossing." Code 1886, § 1144; Code 1876, § 1699. The move ments of trains in towns and cities are authorized to be regulated by the municipal authorities. Code 1886, § 1519. Except so far as changed by statute, no particular rate of speed, however rapid, can per se or as matter of law be

evidence of negligence. And it is quite proper in this progressive age of inventions in science and art, when the necessities of commerce are every day demanding more rapid transit, that no such unprogressive rule of law should be promulgated by our courts: The authorities are uniform in support of this view, and I trust always will be. Railroad Co. v. Deaver, 79 Ala. 216; Railroad Co. v Munger, 49 Amer. Dec. 267, note, and cases cited; 2 Shear. & R. Neg. § 478. It has often been held, under statutes similar to our own, that the mere fact that a train was running at a very rapid speed, even at a crossing, is not sufficient evidence of negligence to render the company liable for injury to cattle. Railroad Co. v. Barlow, 71 Ill. 640; Plaster v. Railroad Co., 35 Iowa, 449; Railroad Co. v. Shriner, 6 Ind. 141. Where the statute is inapplicable, the question of negligence vel non must be governed by the rules of the common law. Railroad Co. v. Com., 26 Amer. Rep. 205, and note, 207-211; Deaver's Case, 79 Ala. 216, supra. The charge under consideration was a clear violation of these principles.

8. The first charge, marked "A," requested by the defendant, was misleading, and on this account was properly refused. It assumes that no duty devolved on the engineer to use any precaution to frighten the mules away from the track, by the use of the whistle or bell, until he discovered them actually on the track; or else approaching it. This duty might exist if he saw, or by the use of due diligence ought to have seen, the animals in dangerous proximity to the track, and under circumstances indicating danger of their getting on the track; a feature of the case which the charge improperly withdrew from the jury. Railroad Co. v. Jones, 56 Ala. 507. The court committed no error in refusing the general affirmative charge requested by defendant. Reversed and remanded.

TRAWICK et al. v. DAVIS et al.

(Supreme Court of Alabama. December 6, 1888.) 1. EQUITY-RESCISSION OF DEED-CLAIM UNDER A WILL.

A conveyance by a married woman of her separate estate to her husband and a son, which is a nullity for want of joinder therein by the husband, and which has not been probated as a will in the proper forum, cannot be upheld as such, when set out as a deed in a bill by an heir to set it aside, where defendants assert that it is a will.

2. DESCENT AND DISTRIBUTION-REALTY-COMPROMISE BETWEEN HEIRS.

Defendants being sons of the married woman, and alleging a compromise with their sister, and a conveyance by her to them of her interest in the property, which are admitted by her, a decree of an interest to her is erroneous.

The husband being entitled to half of the personal estate of the wife on her death, that sum is properly decreed to his administrator.

4. PARTITION-DEATH OF LIFE TENANT-RIGHTS OF HEIRS.

The husband having died, and his interest in the land of his wife having thereby terminated, a partition among her heirs is proper.

Appeal from chancery court, Dale county; JOHN A. FOSTER, Judge. Bill by Ann E. Davis against Elijah A. Trawick, Thomas Trawick, Amanda Pate, and her husband, to set aside a conveyance by Lucinda Trawick, mother of complainant, by a former marriage, of her separate estate, to G. N. Trawick, her husband, and defendant Elijah A. Trawick, her son, and a conveyance of the same property by G. N. Trawick to defendants Elijah A. and Thomas Trawick. Defendants Amanda Pate and her husband were, on their petition, made complainants. Decree for complainants, and defendants appeal. J. C. Cowan and W. C. Oates, for appellants. W. E. Mauldin and J. A. Clendemion, for appellees.

CLOPTON, J. On February 7, 1887, Lucinda Trawick, who was a married woman, executed to her husband, G. N. Trawick, and her son Elijah A. Tra