[Stein, et al. v. McGrath.] scribing the property sought to be partitioned, is sufficient, if it refers for the description to an answer and cross-bill filed by a defendant to the original bill. An exhibit containing a description of the property attached to the bill, may be referred to, and would dispense with the necessity of describing the property in the premises, or stating part, for the reason that such exhibit would be part of the bill. But neither the answer and crossbill nor copies of them are attached to the bill; are not exhibits to it. There is no more than the general allegation that the property is fully described in particular paragraphs of the answer and cross-bill filed to the original bill. It may be observed, that all the stating part of the original bill was stricken out by the amended bill -that alone was the pleading on which the plaintiff could rely, in support of which evidence could be offered, and upon which relief could be obtained. Whether the answer and cross-bill was appropriate to the amended bill, was matter of consideration for the defendant interposing them, if reliance was placed upon them; and at any time before final decree, either could have been amended by striking out the paragraphs referred to, or by changing the description of the property therein given, enlarging or diminishing it, rendering necessary further amendment of the bill. Without pursuing further discussion of the question, we are of opinion the demurrers to the amended bill for the want of an accurate description of the property of which partition is sought, should have been sustained. Any other conclusion would encourage a laxity of pleading, injurious to suitors, and embarrassing to the administration of justice. This conclusion renders necessary, a reversal, in this respect, of the decree of the chancellor, and a remandment of the cause. Reversed and remanded. 116 600 118 385 [Louisville & Nashville Railroad Co. v. Malone.] Louisville & Nashville Railroad Action against a Railroad Company to recover Damages resulting from Fire caused by Sparks from Locomotive. 1. Bill of exceptions; admissibility of parol evidence of alteration after signature.-Parol evidence is admissible to show that the bill of exceptions was altered by the presiding judge after it became a part of the record by being signed by him, or that it was, in fact, signed at a time when the judge had no power to act. 2. Same; alteration; when bill of exceptions properly stricken from the record.-After a presiding judge has signed a bill of exceptions and the court has adjourned or the time allowed for signing the same has expired, it is beyond his power to alter or modify such bill of exceptions; and if, after the judge signs the bill of exceptions, and after the expiration of the time fixed for signing it by his order, he makes alterations and changes in the instrument which he had thus signed, such instrument can not be considered as a true bill of exceptions in the case, and on motion properly made will be stricken from the record. 3. Trial and its incidents; appointment of special judge.-When, after a regular circuit court judge organizes the court, he is taken sick during the term and becomes unable to preside and transact the business of the court until the completion of the term, the Governor can, under the provisions of the statute (Acts of 1894-95, p. 1135), appoint a special judge to hold court during the remainder of the term. 4. Duty of owner of property adjacent to railroad track; contributory negligence.—One who owns lands or buildings adjacent to a railroad track upon which trains are continually run, if he uses such land or the houses in a natural and proper way for the purposes for which they are suitable, is not chargeable with contributory negligence for the failure to take precautions against the negligence of the railroad company. 5. Same; same; action against railroad company for damages from fire. The owner of a house situated sixty-three feet from the middle of a railroad track, which house is covered with poplar shingles with a valley extending from the top of the house towards the road-way, is not guilty of contributory negligence in allowing dry leaves to accumulate in such valley; and in an action against a railroad company by such owner to recover damages for the destruction of his house by fire, which was caused from sparks from trains passing upon the defendant's road, a plea setting up such facts does not present a proper issue and is correctly stricken from the file. [Louisville & Nashville Railroad Co. v. Malone.] APPEAL from the Circuit Court of Limestone. Tried before the Hon. DANIEL W. SPEAKE, Special Judge. This action was brought on March 8th, 1895, by the appellee, Matilda Malone, against the appellant, the Louisville & Nashville Railroad Company, to recover damages for the alleged negligent setting fire to and burning of her house and other property by the defendant. The material facts of the case are substantially the same as disclosed on the former appeal; and special reference is here made to the report of such appeal, as contained in the 109th Alabama, p. 509. Such other rulings of the case as are reviewed on the present appeal are sufficiently shown in the opinion. There were verdict and judgment for the plaintiff. The defendant appeals, and assigns as error the several rulings of the trial court to which exceptions were reserved. THOS. G. JONES, for appellant.-The true rule as to the care which a person owning lands adjoining a railway is required to take of his property, is that the plaintiff is bound to use such care in protecting his premises as a man of ordinary prudence would employ under such circumstances, and if by reason of his neglect, or neglect on the part of his employès his house is consumed, or if such negligence on his part concurred with negligence on the part of the defendant in producing the result, the plaintiff can not recover.-Murphy v. C. & N. W. R. R. Co., 45 Wis. 222; Kesesee v. R. R. Co., 30 Ia. 78; Railway Co. v. Haworth, 39 Ill. 346; Railway Co. v. Maxfield, 72 Ill. 95; Railway Co. v. Brady, 17 Kan. 380; Coates v. R. R. Co., 61 Mo. 38; Brown v. R. R. Co., 37 Mo. 298; Bevier v. Del. & H. Can. Co., 13 Hun. 254; Birge v. Gardner, 19 Conn. 507; Penn. Co. v. Gallentine, 77 Ind. 329; M. & W. R. R. Co. v. McConnell, 27 Ga. 481; Collins v. N. Y. C. R. R. Co., 5 Hun. 499. W. T. SANDERS and MCCLELLAN & MCCLELLAN, contra. Where the plaintiff uses his land in a natural and proper way for the purposes for which it is suitable, he is not chargeable with contributory negligence from a failure to take precautions against the negligence of a railway company.-8 Amer. & Eng. Encyc. of Law, [Louisville & Nashville Railroad Co. v. Malone.] 16, and authorities cited. Permitting the roof to be in such a condition that it is liable to take fire easier than if it had a good roof, is not contributory negligence. Phila. & Reading R. R. Co. v. Hendrickson, 80 Pa. St. 183; Burke v. L. & N. R. R. Co., 7 Heisk. (Tenn.) 451; R. & D. R. R. Co. v. Medley, 75 Va. 499; Fero v. Buffalo &c. R. Co., 22 N. Y. 209. COLEMAN, J.-The first question presented arises upon the motion of appellee to strike the bill of exceptions from the record. The motion is predicated upon the following facts: The trial terminated on the 10th of October, 1896. On that day, the court made an order allowing sixty days from date, within which the defendant might prepare a bill of exceptions. Before the expiration of the time, the court extended the time forty additional days. On the 7th of January, 1897, the judge signed an instrument purporting to be the bill of exceptions. Instead of filing the instrument in court, it was sent to counsel for appellee, who retained it until February 9th, and with many objections and suggestions, returned it to the judge. After this time, the judge made alterations in the instrument which had been signed as a bill of exceptions. There had been no order granting further time, after the expiration of the forty days. It is clearly the law, that a judge has no authority to sign a bill of exceptions in vacation, after the expiration of the time fixed by the last previous order, nor under any circumstances after six months.-Act of February 22d, 1887, (Acts of 1886-87, p. 126); Beal v. The State, 99 Ala. 234; Morris v. Brannen, 103 Ala. 602; Bass Furnace Co. v. Glasscock, 86 Ala. 244. Section 2760 of the Code of 1886 provides that when the bill of exceptions is signed by the presiding judge it "thereby becomes a part of the record." We then have a case of a bill of exceptions signed by the judge on the 7th of January, 1897, a day within the time fixed by the order. Instead of filing the bill in court the judge encloses it to counsel for appellee, writing them to the effect that, notwithstanding having signed it, he would make such subsequent changes as he might deem proper to be made. The bill of exceptions was returned to the judge by appellee's counsel on the 9th of February, 1897, and some [Louisville & Nashville Railroad Co. v. Malone.] time between that day and the 12th of April, the alterations were made. More than six months had elapsed before the bill was filed with the clerk. It is a common principle of law, that parol evidence is inadmissible to contradict, add to or vary a record, and by repeated decisions of this court the rule has applied to bills of exceptions, after they had been signed and sealed by the judge. It is equally well settled, that after the judge has signed the bill of exceptions, and court has adjourned, or the time allowed for signing the same has expired, it is beyond his power to alter, modify or explain it.—Chapman v. Holding, 54 Ala. 61; Pearce v. Clements, 93 Ala. 256; Rosson v. The State, 92 Ala. 76. In the case of Cullum v. Casey, 1 Ala. 351, 355, it was declared, that where a court assumes to act in a particular cause when it had no power to sit in any cause, its acts are not judicial, and are void. If it was an admitted fact that the bill of exceptions in the record was the same as that signed by the presiding judge on January 7th, and there was an attempt to correct or modify it in any way by parol, the decisions. are conclusive, that it could not be done. The question presented is, whether parol evidence is admissible to show that the bill of exceptions, after it became a part of the record, was altered; or that in fact it was signed at a time when the judge had do power to act. It would seem to be wholly useless to declare that after a bill has been signed, a judge has no power to alter or modify it, and yet hold that a party is concluded from proving the alteration; or in holding that a judge has no authority to sign a bill of exceptions after a certain date, and yet hold, that any date he may give to the bill of exceptions is conclusive of its truth. In the case of Kitchen v. Moye, 17 Ala. 394, in answer to a writ of certiorari, a transcript was sent up with a bill of exceptions bearing date as if signed in term time. The certificate of the clerk, however, showed that in fact, it had been signed in vacation. The bill of exceptions was rejected, the court declaring that the judge had no authority to add to or vary a bill of exceptions in vacation. The rule which declares that parol evidence is inadmissible to vary or contradict a record, does not prohibit the introduction of such evidence when the purpose is to show, that a paper writing or instrument which purports |