upon the statute which admits parc evidence to convert into a mortgage a conveyance absolute in form.

In Edwards v. Rogers, 81 Ala. 568, we declined to commit ourselves to an extension of the exception of cases where there is a verbal agreement, between the grantee and a person other than the grantor, that the conveyance shall operate as security for a debt due by such third person to the grantee. As there are no facts alleged or proved on which equity will otherwise create a resulting trust, the trust, if one arises, must come within the class usually denominated trusts ex maleficio. It cannot be questioned that generally fraud, imposition, or mistake takes a case without the statute of frauds; the rule being based on the principle that the statute intended as a protection against fraud shall not, in a court of equity, be perverted to its consummation. The application of this principle, which may now be regarded as a maxim, has been carried beyond the first intention by some authorities in holding that though no fraud may have been intended or practiced in the procurement of the legal title, a conversion of it to uses or purposes other than contemplated and expressed in the parol agreement, contemporaneous with the execution of the deed, and which was intentionally omitted from it,—a mere breach or repudiation of the contract,-constitutes a fraud, against which a court of equity will relieve by compelling restitution or an execution of the trust. Whatever may be the conflict of authorities, the rule is otherwise established by the decisions of this court.

In Patton v. Beecher, 62 Ala. 579, it is said: "When the original transaction is free from the taint of fraud or imposition; when the written contract expresses all the parties intended it should; when the parol agreement which is sought to be enforced is intentionally excluded from it, it is difficult to conceive of any ground upon which the imputation of fraud can rest, because of its subsequent violation or repudiation; that would not form a basis for a similar imputation, when any promise or contract is broken. It is an annihilation of the statute to withdraw a case from its operation, because of such violation or repudiation of an agreement or trust, it declares shall not be made or proved by parol.' And in White v. Farley, 81 Ala. 563, it is said: "The facts here raise no resulting trust, the lands having been paid for by Beasley with his own, and not with White's, money. Nor was the title acquired by contrivance, deceit, or false representation in such manner as to raise a trust ex maleficio, which has been held to be tacitly excepted from the provision of this section of the statute of frauds." The section referred to is the one quoted above. These decisions show that the rule, as recognized and adopted in this state, is that the title must be obtained by false and fraudulent promise to hold and use the same for the expressed and agreed uses and purposes, and subsequently converted to other purposes, or claimed by the grantee as his own. Mere subsequent fraud is not sufficient. There must be fraud in the original transaction, which must be of such character as to constitute a fraudulent contrivance for the purpose of acquiring the legal title. Where there is no fraud or imposition in acquiring the title by means of the verbal promise or agreement, equity will not enforce it in contravention of the express declaration of the statute. 2 Pom. Eq. Jur. §§ 1055, 1056; Browne, St. Frauds, 101.

If a trust exists, it is created by a parol agreement. The bill does not aver, nor does the evidence show, that the deed was obtained from Wade by any deceit, contrivance, or false representation, or that any fraud was intended or practiced in making the agreement. On the contrary, the bill avers that the complainant applied to the defendant to advance the money, and agreed to have the deed executed to him without any act or promise on his part, other than that it should stand as security for the repayment of the money advanced. The parol agreement clearly falls within the provisions of section 1845. It may work a hardship, but a court of equity cannot enforce the contract with

out an abrogation of the statute of frauds. Reversed, and a decree will be here rendered dismissing the bill. Reversed and rendered.

MONTGOMERY Gas-Light Co. v. MontgoMERY & E. RY. Co.

(Supreme Court of Alabama. January 8, 1889.)

1. NEGLIGENCE-USE OF SIDE TRACK-PLAINTIFF'S DUTY TO THIRD PERSONS. A complaint alleging that defendant, being lawfully in possession of plaintiff's side track, negligently placed a freight-car so near plaintiff's main track that plaintiff's train collided with it, whereby its cars were damaged, shows a cause of action. Plaintiff's duty as to third persons to remove the obstruction cannot relieve defendant from liability.

2. SAME-HIRER OF SIDE TRACK-AGENT'S NEGLIGENCE.

One contracting for the use of a side track impliedly assumes the duty of so using it as to keep it free from obstructions, and is chargeable with any act of negligence of his agents in the performance of their duty in relation thereto, or of the employés of such agent, though he has no immediate control of such employés. 3. SAME-CONTRIBUTORY Negligence-Burden of Proof.

Contributory negligence is a defense, and defendant has the burden of proving it. It is not necessary for plaintiff in the first instance to negative it.

4. SAME-INSTRUCTIONS.

It is not error to charge that contributory negligence must have been of a character to have essentially contributed to the injury complained of.

5. SAME-ACTION BY BAILEE.

A bailee for hire may maintain an action for negligent injuries to the subject of the bailment while in his possession.

6. SAME-PROVINCE OF COURT AND JURY.

In an action for negligence, where different conclusions may reasonably be drawn from the evidence, there is no error in refusing to charge that if the jury believe all the evidence they must find a verdict for defendant.

7 SAME-PARTIES-DISCONTINUANCE.

A discontinuance of an action for negligence as to one of several defendants does not operate to discontinue it as to the others, and the rule is not changed by Code Ala. 1876, § 2911, authorizing a discontinuance as to defendants not served.

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD, Judge.

Action by the Montgomery & Eufaula Railway Company against the Montgomery Gas-Light Company and others, for damages from injuries to a moving train of cars, caused by a collision with several empty cars, which were standing on a side track, and alleged to have been left there by the negligence of the defendants. Defendants' special plea averred, in substance, that the side track was part of plaintiff's railway, and at the time of the injury in its possession and under its control; that the Louisville & Nashville Railroad Company had for a long time, with plaintiff's knowledge and consent, delivered cars loaded with coal for defendants on the side track, to be unloaded by defendants, and, after being unloaded, to be taken away by the Louisville & Nashville Railroad Company, for which defendants paid the latter one dollar for each car so delivered, and paid plaintiff sixty cents for each car for the use of the side track; that a municipal ordinance of the city of Montgomery, in force at the time, prohibited any locomotive or train of cars, when moving backward, to run at a greater speed than four miles per hour; but plaintiff's engine and cars were run back ward at a greater rate of speed, and no proper provision was made for giving signals to the engineer in charge in case of danger. A separate plea was also filed by the Montgomery GasLight Company, which further alleged that, at the time of and before the injury, Chambers & Abercrombie had contracted with the gas-light company to unload its cars upon the side track, and the cars which caused the injury were, at the time thereof, under their control and management, or under that of their servants and employés, and were not under control of the gas-light

company, or any of its servants or employés, and it had no power or authority to control or discharge such employés of Chambers & Abercrombie; and that the gas-light company did not in any way direct Chambers & Abercrombie, or any of their servants or employés, to push or place the cars on the side track in the position where they were when the injury occurred. Plaintiff entered a discontinuance as against said Chambers & Abercrombie, and because thereof the gas-light company moved to dismiss the suit entire, which motion was overruled. A demurrer to the complaint was overruled, and a demurrer to the second plea was sustained. The court refused defendant's request to charge: "(10) If the jury believe from the evidence that the cars' alleged to have been injured were the property of the Louisville & Nashville Railroad Company, then they cannot find a verdict for the plaintiff for the damages done to said cars." "(12) If the jury believe all the evidence, they must find a verdict for the defendant." The gas-light company appeals.

W. S. Thorington, for appellant.

SOMERVILLE, J. The rule of the common law was that in actions ex contractu a discontinuance as to one or more of several defendants, without sufficient legal excuse therefor, operated to discontinue the whole action. Reynolds v. Simpkins, 62 Ala. 415; Mock v. Walker, 42 Ala. 668. But in actions ex delicto the plaintiff could discontinue as to one or more defendants, and maintain his action against the remaining defendants, without discontinuing the whole suit. 5 Amer. & Eng. Cyclop. Law, 676; U. S v. Linn, 1 How. 104; Weakly v. Royer, 3 Watts, 460. This could be done even after verdict, though all the defendants had joined in the same pleas, and been found guilty of the same tort; the plaintiff being permitted to enter a nolle prosequi as to some of them, and take judgment against the rest. Hardy v. Thomas, 23 Miss. 544; Salmon v. Smith, 1 Saund. 207. Section 2607 of our present Code, (Code 1876, § 2911,) which authorizes a discontinuance to be entered as to parties defendant who are not served, was not intended, nor does it operate, to change this common-law rule applicable to actions ex delicto. A plaintiff may still bring his action against several tort-feasors, and dismiss as to one or more, whether served with process or not, and proceed to judgment against the remaining defendant, without discontinuing his entire action. Slade v. Street, 77 Ala. 576.

The dismissal of the present suit, which is one in case or ex delicto, against the defendants Chambers & Abercrombie, did not operate to discontinue the action against the other defendant, the Montgomery Gas-Light Company, and there was no error in overruling the motion of appellant to dismiss the entire action.

The principles settled in this case, when last before us on appeal, are, in our judgment, conclusive as to the correctness of the action of the circuit court in overruling the demurrers to both the original and the amended complaint. Railway Co. v. Chambers, 79 Ala. 338. We there decided that contributory negligence is a defense, the burden of proving which rests on the defendant, and that it is unnecessary for the plaintiff, in the first instance, to negative fault or neglect, or the want of ordinary care, on his part. 3 Brick. Dig. 672, § 25 et seq., and cases cited.

The original complaint certainly contained averments of fact showing a substantial cause of action. It alleges, in substance, that the defendant, being lawfully in possession of the plaintiff's side track, wrongfully and negligently placed a freight-car so near the main track of the plaintiff's road that a train of cars, operated by plaintiff's servants, ran into and were driven against said obstruction on the side track, from the effects of which four of said cars were broken to pieces, and damaged to the extent of $2,000. This was a wrongful act or tort on the part of the defendant, constituting a violation of a legal duty, and resulting directly in pecuniary injury to the plaintiff, and hence the

act complained of embraced all that was necessary to constitute a legal cause of action. It was entirely immaterial that it was the plaintiff's right and duty, as to third persons, to have removed the obstruction which caused the injury. The plaintiff's liability to third persons, whether passengers or employés, cannot relieve the defendant of its liability to the plaintiff for any injury resulting from its negligence or other wrongful conduct. There was no error in overruling the demurrer to the complaint, original or as amended.

We held, on the former appeal, that the second plea of the defendant was defective, and that the demurrer to it should have been sustained. This plea avers several cumulative acts of alleged negligence on the part of the plaintiff, which are averred to have contributed to the injury sustained by the collision of the plaintiff's train with the car left standing on the side track. These are: (1) Backing their train at a rate of speed faster than that allowed by a city ordinance, which rate was four miles per hour. (2) Failure to make provision for giving signals to the engineer, so as to warn him of danger while backing the train. (3) The construction of the side track in an unskillful and improper manner. The defect in the plea, pointed out by demurrer, was that it failed to aver that the alleged acts of contributory negligence were the proximate cause of the damage suffered, or, in other words, that they proximately contributed to the injury complained of. The amendment to the plea, which now appears in the record, obviated the grounds of objection specified in the demurrer. The question of negligence vel non should, under the averments of the complaint, have been submitted to the jury as one of fact, under proper instructions from the court as to the law.

Contributory negligence is commonly defined as "a want of ordinary care upon the part of the person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred." 4 Amer. & Eng. Cyclop. Law, 17; 3 Brick. Dig. § 25 et seq., and cases cited; Railroad Co. v. Schaufler, 75 Ala. 136. It is objected that the circuit court, in defining the phrase "contributory negligence," embraced in it the idea that it must have been of a character to have "essentially contributed" to the injury set out in the complaint. The rule is stated in Railroad Co. v. Hanlon, 53 Ala. 70, and, in our judgment, is not incorrect. It is often said that no negligence on the part of the plaintiff, which "remotely contributes" to produce an injury, will debar him from a recovery; and it is variously stated that no negligence is contributory and proximate, in the order of cause and effect, unless it "substantially," or "essentially," or "directly" contributes to produce such injury, or is an "efficient cause," ," or “active and efficient" cause in producing it. These terms of description are often used indifferently to distinguish the direct and immediate or juridical cause of the injury from a remote cause or mere condition of such injury, and they cannot be said to be either erroneous or misleading. 4 Amer. & Eng. Cyclop. Law, 23, 25–27, 42, 51; 2 Wood, Ry. Law, note, 1066; Beach, Contrib. Neg. § 10, and pages 27, 28, 32.

If the defendant employed Chambers & Abercrombie to unload the cars on the side track or switch, it is plain that any act of negligence on their part, or on the part of their employés, in the performance of this duty, would be imputable to the defendant, on account of the relation of master and servant existing between them, although the defendant corporation had no immediate control over such employés, while engaged in the duty of unloading. Chambers & Abercrombie were in no sense independent contractors, but were agents of the defendant, the gas-light company, which itself had impliedly assumed the duty of so using the track as to keep it clear of obstructions. The law, under the terms of the contract for using the side track, thus devolved on the defendant the duty of keeping it in safe condition; and this duty could not be cast on another, so as to escape liability properly attaching v.5so.no.25-47

to its non-performance. City of Birmingham v. McCary, 84 Ala. 469, 4 South. Rep. 630.

There was, under the above principles, no error in giving the several charges requested by the plaintiff. It was no answer to the maintenance of the present action that the cars alleged to have been injured belonged to the Louisville & Nashville Railroad Company. The plaintiff had them in possession as bailee for hire, and owned such a special property in the cars as to authorize an action in its name against a third person, for negligently or tortiously injuring them. Such bailee may maintain an action on the case for an injury to the bailed property, as well as an action of trespass, trover, or detinue against a wrongdoer, in a proper case. The charge numbered 10, requested by the defendant, was properly refused. Orser v. Storms, 18 Amer. Dec. 548-550; Hare v. Fuller, 7 Ala. 717; McGill v. Monette, 37 Ala. 49; Brewster v. Warner, 136 Mass. 57; 2 Amer. & Eng. Cyclop. Law, 61.

There was no error in refusing the general affirmative charge requested in behalf of the defendant, under the rules heretofore frequently announced by City of Birmingham v. McCary, 84 Ala. 469, 4 South. Rep. 630; Eureka Co. v. Bass, 81 Ala. 200.

as.

Reversed and remanded.

CLOPTON, J., not sitting.

ERNST et al. v. HOGUE.

(Supreme Court of Alabama. April 9, 1889.)

1. REPLEVIN-ACTION ON BOND-WHEN LIES.

Acts Ala. 1886-87, p. 131, provide that in detinue, when the property is in plaintiff's possession at the termination of the cause, and the cause is dismissed, the court, on motion or plea in abatement, shall impanel a jury to assess the value of the property and value of its use, and shall render judgment for such property or value and damages. Held, that on dismissal the summary judgment is not requisite to the right of defendant to sue on the replevin bond. 2. SAME-PLEADING OWNERSHIP.

Under Code Ala. 1886, § 2721, no execution can issue on the replevin bond unless the value and damages have been assessed, and judgment rendered therefor, and the sheriff has returned on the bond a failure to deliver the property. In an action on a replevin bond, conditioned that plaintiffs in the detinue suit should deliver the property to defendant within 30 days after judgment, and pay damages, etc., in case they failed to recover, held that, the detinue suit having been dismissed, but no summary judgment on the bond having been recovered, nominal damages at least were recoverable for breach of the condition, and defendants in the action on the bond could not allege ownership of the property in bar, but could allege it in mitigation of damages.

3. ABATEMENT ANOTHER ACTION PENDING-PLEADING.

In an action on a replevin bond, a plea in abatement that at the time of the issu ance of the summons "in this cause another suit was pending in this court between said plaintiff and said defendants, involving the same cause of action that is involved in this action," is bad on demurrer.

Appeal from circuit court, Hale county; JOHN MOORE, Judge.

Action by John J. Hogue against Ernst Bros. and others on a replevin bond. There was a plea in abatement that at the time of the issuance of the summons "in this cause another suit was pending in this court between said plaintiff and said defendants, involving the same cause of action that is involved in this action," to which plaintiff demurred, and the demurrer was sustained. Defendants appeal.

Tayloe & Johnston, for appellants. Thos. R. Roulhac, for appellee.

CLOPTON, J. A statutory action for the recovery of personal property in specie was instituted by Ernst Bros. against appellee. The requisite affi