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out the lands; that is, that notice shall be given, a hearing had, commissioners appointed, and an agent or guardian assigned for absent heirs or minors. But in view of the fact that it has long been well understood that a widow is not dowable of a remainder, that all the other statutory provisions securing to the survivor an interest in the real estate of a deceased husband or wife are limited to lands of which the deceased was seised, (curtesy, Id. c. 124, § 1,) and that her estate under the provision now in question is to be in fee, and to be set out to her in fee, it seems to follow that it was not the intention of the legislature to include an estate held by her husband only in remainder; and, looking at the history of this legislation, we find nothing inconsistent with this conclusion, (St. 1854, c. 406, § 1; Gen. St. c. 90, §§ 15, 19; St. 1880, c. 211.) Decree affirmed.

(150 Mass. 89)

COMMONWEALTH v. TRIMBLE. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 13, 1889.)

sold under a license, who was in no degree
intoxicated at the times of such sales;
but, after that intoxication of that person had
in any degree taken effect, the defendant could
not continue to sell liquor to that person," etc.
Pub. St. Mass. c. 100, § 9, cl. 4, provides "that
no sale or delivery of liquor shall be made on
the premises described in the license ***
to an intoxicated person." Chapter 207, § 25,
provides that "whoever is found in a state of
intoxication in a public place, or is found in
any place in a state of intoxication, commit-
ting a breach of the peace, or disturbing others
by noise, may be arrested," etc. Verdict of
guilty, and defendant excepts.

A. J. Waterman, Atty. Gen., and H. C. Bliss, Asst. Atty. Gen., for the Commonwealth. J. Brown, for defendant.

KNOWLTON, J. The only exceptions argued by the defendant relate to the instructions, and the refusals to instruct, in regard to the meaning of the words "an intoxicated person," in Pub. St. c. 100, § 9, cl. 4. The presiding justice was asked to define the words INTOXICATING LIQUORS-ILLEGAL SALES. by referring the jury to similar language in 1. On trial for maintaining a liquor nuisance Id. c. 207, § 25, which provides for the punisha refusal to charge as to the meaning of the words ment of persons "found in a state of intoxi"an intoxicated person," as used in Pub. St. Mass. c. 100, § 9, cl. 4, prohibiting the sale of liquor to cation." Assuming that both these statutes such person, by referring the jury to the language relate to persons in identically the same conof Id. c. 207, § 25, which provides for the punish-dition, the jury could not properly have been ment of persons "found in the state of intoxication," is not error, as the latter also requires inter-aided in interpreting the former by a refpretation. erence to the latter, which equally needed interpretation.

2. The court charged that there would have been a violation of defendant's license if it was proved beyond reasonable doubt that the defendant sold intoxicating liquors "to a person who was intoxicated in any degree," and that defendant's license would not be violated by a sale of intoxicating liquor to a person to whom it could be lawfully sold, "who was in no degree intoxicated, "notwithstand ing such sales caused the intoxication; "but, after that intoxication had in any degree taken effect, the defendant could not continue to sell intoxicating liquor to that person." The evidence showed that defendant had sold to persons "in different stages of intoxication;" but, in order to convict, the jury were only required to find that certain persons were "intoxicated." Held that, in the absence of a request for a proper definition of "intoxication," the instructions were not erroneous on the ground that they recognized the possibility of different degrees.

Exceptions from superior court, Bristol county.

It is objected that the instructions given were erroneous because they recognized the possibility of different degrees of intoxication. But there was testimony that the defendant was seen to sell to persons "in different stages of intoxication;" and we suppose it can hardly be doubted that a person, after having become intoxicated, may, by continuing drinking, pass through different stages, and be in different degrees of intoxication. If the jury had been permitted to find the defendant guilty for selling to those who were partly intoxicated, or were under the influence of liquor to any degree less than intoxication, the instructions would have been erroneous. But, in order to convict, they were required to find that the persons referred to were "inComplaint against Gibson Trimble for keep- toxicated;" and they were told, in substance, ing a liquor nuisance. Evidence was adduced that it was immaterial what was the degree by the prosecution to the effect that defendant of their intoxication. The presiding justice was seen by witnesses to sell liquor to persons apparently deemed "intoxicated" a familiar "who were drunk, or under the influence of word, the meaning of which was well underliquor, and in different stages of intoxica- stood by the jury. In the absence of a retion." The court instructed that "there quest for a proper definition of it, there was would have been a violation of defendant's no error in the instructions. Exceptions license if during the period and on the prem- overruled. ises to which his license applied, and during the time alleged in the complaint, it was proved beyond reasonable doubt that the defendant sold intoxicating liquors * * * to a person who was intoxicated in any degree, etc.; and further instructed that "defendant's license would not be violated by one or more sales of intoxicating liquor to a person to whom intoxicating liquor could be lawfully

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(150 Mass. 77) DALEY V. AMERICAN PRINTING Co. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 11, 1889.) MASTER AND SERVANT-DEFECTIVE APPLIANCES. 1. In an action for personal injury to an employe, caused by being caught in a set-screw while putting belting on a pulley operating defendant's elevator, it appeared that plaintiff's work required

ment in its behalf before us. The jury might have believed the plaintiff's witness if he had been allowed to testify, rather than the de

him to pass up and down the elevator, and that the screw projected from the shafting, but was removed after the accident. Held, that evidence that the belting was frequently off, and that there was no one whose business it was to put it on, but fendant's. that every one who had to use the elevator adjust- This material evidence having been excluded it, was improperly excluded, as it tended to showed, that plaintiff was injured by defective machinery ed, there must be a new trial, unless it can that plaintiff was injured by defective machinery be seen that, even if it had been admitted and while in the line of his duty.

2. It cannot be said, as a matter of law, that believed, still the verdict must have been for no sufficient evidence was introduced or offered of the defendant. The ground upon which the the negligence of defendant, or freedom from negligence on the part of plaintiff, and, as no reason Case was withdrawn from the jury is not statappears why the case was taken from the jury, ed, but we cannot say, as matter of law, that plaintiff is entitled to a new trial. no sufficient evidence was introduced or of

Exceptions from superior court, Bristol county; ROBERT R. BISHOP, Judge.

Action of tort by Richard Daley against American Printing Company, for personal injuries to plaintiff, caused by being caught in a set-screw while in the act of putting a belt on a pulley which was connected with an elevator, up and down which plaintiff's work required him to pass, and which was about 20 feet from the elevator, and the only purpose of which was to run the elevator. At the trial, in addition to evidence, the nature of which appears in the opinion, there was evidence that the set-screw projected from the shafting half an inch, and that it was removed after the accident. The verdict was for the defendant, and to rulings of the presiding judge, the substance of which appears in the opinion, the plaintiff excepted.

J. W. Cummings, for plaintiff. Morton & Jennings and J. Lowell, Jr., for defendant.

fered of negligence on the part of the defendant, or of freedom from negligence on the part of the plaintiff. He offered to show that the belt was frequently off. This evidence, if admitted, would have had a tendency to show that the machinery was not suitable, and that it needed frequent readjustment. The testimony in respect to the projection of the set-screw, and to its subsequent removal, was in the same direction. If the machinery was found to be unsuitable, and if the plaintiff was within the line of his duty in attempting to adjust the belt, we cannot say that he was not entitled to go to the jury on the question of whether he was in the exercise of due care. The evidence bearing upon this point, as reported, is not altogether clear, and does not enable us to understand fully what it was necessary to do in order to adjust the belt, or how it was usually put on the pulley when it had got off. Exceptions sustained.

(150 Mass. 82)

LOCKWOOD v. COREY. (Supreme Judicial Court of Massachusetts. Bristol. Nov. 11, 1889.)

MARRIED WOMAN-SEPARATE ESTATE. 1. Where a married woman, who keeps boarders, purchases a swine with a view to its natural increase, though the animal and its progeny are fed from the waste of the table, which is even greater on that account, the purchase is in the nature of a profitable investment of the savings of the business, and not "property employed in the business," within the meaning of St. Mass. 1862, c. 198, and embodied in Pub. St. c. 147, § 11, requiring a married woman doing business on her own account to file in the clerk's office a certificate of the nature and location of the business before the "property employed in the business" will be exempt from attachment as the property of her husband.

C. ALLEN, J. There was evidence tending to show that the plaintiff was employed on work which required him to use the elevator; that the elevator was operated by a belt which passed over a pulley situated about 20 feet from the elevator; that the belt was off from the pulley; and that the plaintiff's injury occurred while he was putting it on, in order to enable him to use the elevator in doing his work. It seems to have become a question at the trial whether it was necessary for the plaintiff himself to attend to putting on the belt, under the circumstances which then existed. The plaintiff had been allowed, subject to an exception by the defendant, to show that there was nobody whose duty it was to put the belt on when it was off. And he afterwards called a witness by whom he proposed to show, further, that the belt was frequently off, how it was put on, and who put it on; and "that there was not anybody specially charged with that; that every body did it that had to use the elevator,-had to put the belt on." This evidence was exclud-Charles Corey for the conversion of 11 pigs, ed. We think it was competent, as one important element of the plaintiff's case was to show that he was in the line of his duty in attempting to put on the belt at the time when he was hurt. The fact that the defendant afterwards introduced testimony to show that there was another man whose duty it was to put on the belts serves to show the importance to the plaintiff of the evidence which was excluded, and, indeed, this also appears by the defendant's answer, as well as by the argu

2. Nor can the purchase and ownership of a single animal for this purpose, under such circumstances, be deemed to be doing a business within the meaning of the statute.

Exceptions from superior court, Bristol county; JAMES R. DUNBAR, Judge.

Action of tort by Ellen Lockwood against

taken by defendant as deputy-sheriff under a writ of attachment in a suit against plaintiff's husband. On trial, defendant asked the court to rule that, as plaintiff had filed no certificate in the clerk's office that she was doing business for herself, the property was subject to attachment for the debt of her husband. The court ruled that the certificate was not necessary to exempt the property, The verdict was for plaintiff, and defendant brings exceptions.

H. J. Fuller, for plaintiff. L. N. Francis, for defendant.

Appeal from supreme court, general term, fifth department.

This is an action of ejectment, brought by DEVENS, J. Under St. 1862, c. 198, sub- Edwin A. Barnes against Harvey E. Light stantially embodied in Pub. St. c. 147, § 11, to recover the possession of certain premrequiring a married woman, doing business ises in the town of Pittsford, county of on her separate account, to file a certificate, Monroe. The answer is in substance a genetc., in order to prevent "the property em-eral denial. The defendant's farm, of about ployed in such business" from being subject 68 acres, lies directly east of a portion of to attachment as the property of the husband, plaintiff's farm, of 100 acres. The land in it is clear that all uses of her own property controversy, embracing about one-third of an by the wife do not expose it to this danger. acre, is a triangular strip running from a When the act done by the wife is in the nat-point at the north end of the boundary line ure of an investment of property, even if it between the parties to a base 48 links in be made with a view to profit therefrom, it length at the south end of said line. The cannot be considered doing business, within origin of plaintiff's title, as proved upon the the meaning of the statute. It has been de- trial, was a deed from Oliver Culver to Isaac cided that the property employed in carrying Barnes, dated January 3, 1823, in which the on a farm or boarding-house, and the debts land conveyed is described by metes and which thus became due her, are subject to bounds. The origin of defendant's title, acattachment as the property of the husband. cording to the evidence, was a deed from Chapman v. Briggs, 11 Allen, 546; Dawes v. William N. to Sylvester Shepard, dated April Rodier, 125 Mass. 421; Snow v. Sheldon, 126 30, 1840, which conveyed certain lands Mass. 332. On the other hand, the owner- bounded as follows: "Beginning in the cenship of a horse, and purchase of food and ter of the road leading from Pittsford to stabling for it, the purchase of provisions for Rochester, in the south line of Erastus Willherself and family, or of materials for a house iams' land; from thence running west, in on her own land, are not uses of property said south line, 40 chains, to Isaac Barnes' which require the certificate for its protec- land; thence running south, in the east line tion. Proper v. Cobb, 104 Mass. 589; Wheel- of Barnes' land, 15 chains and 12 links; er v. Raymond, 130 Mass. 247. In the case thence running south, 86 degrees east, 44 at bar the plaintiff had purchased a swine, chains, to the Blake tract, so called; thence with a view to its natural increase. While running north, in the west line of said Blake she kept three boarders, besides the other la- tract, 10 chains and 82 links, to the center of bors by which she sought to support her fam- the Rochester road; thence northwardly, in ily, it could not be considered property used said road, to the place of beginning." The for this purpose; nor did it become so, even several conveyances in the two chains of title if the waste of the table, which might aid in from the original grantors down to the reproviding food for the animal and its prog-spective parties contain like descriptions, exeny, was somewhat larger on that account. cept that the north and west lines of defendIt was in the nature of a profitable invest- ant's land in the final deed to him, dated ment of the savings she made, or might February 8, 1881, are as follows: "Thence make, in the business she was pursuing, and not "property employed in the business." Nor even if the raising of pigs may of itself sometimes be properly termed a "business," as the defendant suggests, could the purchase and ownership of a single animal for this purpose, under the circumstances stated, fairly be deemed to be doing a business, within the meaning of the statute. Exceptions overruled.

(116 N. Y. 34)

BARNES v. LIGHT.1

on the south line of land, now or lately owned by Erastus Williams, north, 841 degrees west, 40 chains 20 links to land of Isaac Barnes; thence south, three degrees and a quarter west, along said land 15 chains." It is conceded "that by following the courses. and distances alone given in the deed from Culver to Barnes along the west and south sides of plaintiff's farm the east line would be so drawn as to exclude the locus in quo." On the trial the court directed a verdict for the defendant, and judgment was entered accordingly. On appeal to the general term

(Court of Appeals of New York, Second Divis- the judgment was affirmed, and plaintiff ap

ion. Oct. 8, 1889.)

EJECTMENT-ADVERSE POSSESSION.

1. In ejectment, where there is testimony showing that plaintiff and his grantors had cultivated a portion of the land in dispute for over 20 years, and that from another portion they had occasionally cut wood and timber, and that they had maintained a fence separating such tract from the lands of the defendant, it is a question for the jury whether such testimony is sufficient to uphold a claim of title by adverse possession.

2. And in such case, it is not necessary for the plaintiff to show that he ever made claim of title to the land by word of mouth.

1Reversing 41 Hun, 638, mem.

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a portion of a cultivated field, fenced on each of its four sides with a substantial fence, and used as part of a farm in the ordinary course of husbandry. While the fence itself may have covered a large part of the cleared land, the jury would have been warranted in finding that it did not cover all of it, and that the part not so covered belonged to the plaintiff through adverse possession for the period required by law. The land thus acquired may have been small in quantity, and insignificant in value, but if it belongs to one party it should not be awarded to the other. Whether the portion north of the woods was protected by a substantial inclosure, and whether it had been usually cultivated or improved, within the meaning of the statute, were questions of fact, which the jury should have been permitted to pass upon.

these questions, the trial court was right in poses, or upon special occasions, but an actdirecting a verdict for the defendant. An ual enjoyment thereof, as part of a farm, action of ejectment, founded only upon ad- year after year, for more than 20 years. verse possession, can be maintained even There was other evidence less favorable to against the true owner. Cahill v. Palmer, 45 the plaintiff's contention. Several witnesses N. Y. 475 Millard v. McMullin, 68 N. Y. testified, in substance, that the fence was 345; Sherman v. Kane, 86 N. 1 57; Carle- temporary and unsubstantial, and that it was ton v. Darcy, 90 N. Y. 566; Mayor v. Carle-erected upon the edge of the woods at the ton, 113 N. Y. 284, 21 N. E. Rep. 55; Baker rear of defendant's cleared land, for the purv. Oakwood, 3 N. Y. Supp. 570; Busw. Lim. pose of keeping cattle from going back into 313-315. As the plaintiff's claim of title the woods; and that this was the object of was not founded upon a written instrument, the fence on the south of plaintiff's cleared judgment, or decree, it was necessary for land also. The testimony of others was to him to show an actual continued occupation the effect that no part of the land in question of the premises under a claim of title not was either cultivated or improved. There founded upon written evidence, exclusive of was, however, evidence that would have warany other right. Code Civil Proc. § 370, ranted the jury in finding the facts as already 371. Under such circumstances land can be stated. By drawing permissible, although deemed to have been held adversely only possibly extreme, inferences, the jury might where it has been protected by a substantial have found that the few rods of cleared land inclosure, or where it has been usually culti-in controversy were, for more than 20 years, vated or improved. Id. § 372. Upon the trial, evidence was given tending to show that the west end of defendant's farm had been cleared and cultivated for 40 years or more. The adjoining land of the plaintiff was, for a distance of over eight chains, a forest, and for the remaining six chains and upwards cleared, inclosed, and cultivated land. The entire forest comprised from 60 to 100 acres, and, although owned by several persons, had no division fences. The portion owned by the plaintiff, constituting the south end of his farm, was separated from his cleared land by a fence that has stood there for over 30 years, during which period all of his cleared land has been cultivated and inclosed, including the northerly part of the land in question. It was plowed, planted, and seeded, then used as a meadow until the grass ran out, when it was plowed, planted, The defendant, however, contends that it and seeded again, and was used, according to does not appear that the plaintiff, or his granone of the witnesses, "as a general farm is tors, ever claimed this strip of land, or any used." For over 40 years a crooked fence, part of it. There is no evidence that any made of rails, boards nailed upon posts and claim of title was made by word of mouth, trees, brush, and "odds and ends," ran be- but it appears that each grantee, in taking tween the east end of the woods and the rear possession of the farm under his deed, enof defendant's farm, and from the woods tered upon, actually occupied, and improved northerly, between the latter and the culti- the land in controversy, or a part of it, alvated part of plaintiff's farm. The north though it was not included in his conveyportion of this fence was better and was more ance. This, if done in good faith, was enough carefully kept up than the part by the woods, to satisfy the statute. A claim of title may and the land upon plaintiff's side thereof was be made by acts alone quite as effectively as cultivated "as close up to the rail fence as by the most emphatic assertions. As was you could plow, or within three feet." This said by the chancellor, when speaking for the fence was occasionally repaired, and partially court of errors in La Frombois v. Smith, 8 renewed, until shortly before the commence- Cow. 589, 603: "The actual possession and ment of the action, when it was torn down improvement of the premises, as owners are by the defendant, and a new fence erected on accustomed to possess and improve their esthe west side of the land in dispute. Several tates, without any payment of rent, or recogmarked trees, the marks being apparently nition of title in another, or disavowal of very old, were found on the line of the old title in himself, will, in the absence of all fence. No use appears to have been made of other evidence, be sufficient to raise a prethe forest by the plaintiff or his grantors, ex-sumption of his entry and holding as absocept to cut wood and timber therefrom occa-lute owner, and, unless rebutted by other sionally. The evidence, when construed evidence, will establish the fact of a claim of most favorably to the plaintiff, did not merely tend to show an occasional use of the cleared part of the locus in quo for particular pur

title." Possession, accompanied by the usual acts of ownership, is presumed to be adverse until shown to be subservient to the title of

another.

We think that the refusal of the court to submit to the jury the question "whether the plaintiff had not had such adverse possession of the premises claimed in the complaint, lying north of the woods, as to give him title thereto," as requested by the counsel for plaintiff, was error, and calls for a reversal of the judgment. This makes it necessary to consider the question of practical location. The judgment should be reversed, and a new trial granted, with costs to abide event. All concur, except BRADLEY and HAIGHT, JJ., not sitting; FOLLETT, C. J., not voting.

(116 N. Y. 317)

William T. Walton and wife. It was thereupon arranged that such a policy should be applied for, and he signed an application to the company. The evidence was duly objected to by the defendant, and an exception taken to its admission. Northrup, the agent, contradicted Walton's testimony in such respect; but that question was determined in favor of the plaintiffs, in a special finding made by the jury. The agent or solicitor who made out the application was not a general agent, and did not have authority to issue policies. His duty was to make out applications for insurance, and forward them to the home office of the company, where they were passed upon. If rejected, the mat

WALTON et ux. v. AGRICULTURAL INS. Co. ter was at an end; if accepted, a policy of in(Court of Appeals of New York, Second ion. Oct. 22, 1889.) INSURANCE-TRANSFER OF TITLE.

Divis-surance was made out, and forwarded to the agent for delivery on receipt of premium. Respecting the extent and limitation of the An insurance policy for the benefit of hus- authority of the agent to represent the deband and wife jointly on property of the husband provided that any change in the title, unless with fendant, the policy in question provided as consent of the company at the home office, should follows: "Agents of the company are permitvitiate the policy. Held, that a transfer from the ted to give the consent of the company to ashusband to his wife through a third person vitiated the policy, and that evidence was not admissible, in signment of policies; but no agent of the coman action on the policy, that when it was issued the pany is permitted to give consent of the comlocal agent who solicited the policy was informed pany in any other cases required by the provisof the proposed transfer, and orally agreed there-ions of this policy, or to waive any stipulation to. BRADLEY, HAIGHT, and BROWN, JJ., dissenting. or condition contained herein; but in all cases Appeal from a judgment of the general term of the supreme court, in the second judicial department, affirming a judgment at circuit, and an order denying defendant's motion for a new trial, made upon the minutes.

where the consent of the company is required by this policy, other than consent to the assignment of the policy, such consent must be obtained at the home office of the company." The trial court charged the jury, as a matter of law, that the conveyance from husband to wife through a third person did not vitiate the policy, and that the plaintiffs were entitled to recover. Defendant excepted. The jury rendered a verdict in favor of the plaintiffs in the sum of $535.50, and the judgment entered thereupon was subsequently affirmed at general term. The defendant appeals to this court.

The action was brought upon a policy of insurance issued by the defendant, to recover the sum of $500 for loss sustained by the burning of a barn, a quantity of hay and grain, and two horses. The policy of insurance contained the following condition: "If the said property be sold or conveyed, or if the interest of the parties therein be changed in any manner, whether by the act of the A. H. Sawyer, for appellant. W. W. Wesparties or by operation of law, * **tervelt, for respondents. then, and in every such case, and in either of said events, this policy shall be null and void until the written consent of the company at the home office is obtained." At the time of the application for and issuance of the policy, William T. Walton was the owner of the premises insured. About five months thereafter, he conveyed said property to a third person, who on the same day duly conveyed the same to Eliza D. Walton, the wife of William. Notice of these transfers was never given to the defendant; neither was the written consent of the company at the home office obtained. William T. Walton, against the objection of the defendant, testified that he told the agent, at the time the application for insurance was made, that, as soon as he had finished repairing the buildings, he should convey the property to his wife, and that he wanted a policy so made out as to cover his interest now, and the interest of his wife after conveyance made; that the agent replied that he could accomplish that result by making the policy out to

PARKER, J., (after stating the facts as above.) The contract of insurance upon which the plaintiffs base their right to recover in this action provided that if the property insured be sold or conveyed, or if the interest of the parties be changed in any manner, the policy shall be null and void until the written consent of the company at the home office shall be obtained. Subsequent to the issuance of the policy, the property was conveyed by Walton, through a third person, to his wife, without the written consent of the company. Thus, by the terms of the contract, the policy of insurance became of no effect. Upon the trial, the plaintiffs sought to relieve themselves from the effect of the violated condition by the introduction of oral evidence tending to show that Walton informed the defendant's solicitor of his intention to convey to his wife after a few months, and requested that the policy be so drawn as to cover his interest before conveyance, and that of his wife afterwards, and

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