illht1l»llnpy statute, or of repeated ,be. recovered back by one; of 'V'fQl1g·doers. If the. right totecoyer back,thesums paid bydefendant;w;as based solely upon the provisions ,of section 1550 oOhe Gode of Iqlvl;\, it would be questionable whether Qourt would he justified in entertaining the cou1'lter.claim. ,This ,sectionis a part orthe ch!\.ptllli' with the subject of sales 9$ IiqUOJ;S, ·and in the enactment of the chapter the legislllturewas exercising, the pQlicepo,we/.': of ;the state. While the section authori7<es the recovery bac::k ,paid for intoxicating liquors sold contrE\ry· to the provisions of the statute, and, thus enllbles ,the vendee to r,naiptain an, actiQnther¢for, civil in.fotm, yet it is entirely 01ear that tbes6ctionwas not enacted for the protection of the vendee. He is in apllrticipant in the violation of the statute, and, no ground exlists forJegislating for his benefit in the particular named. The right 'to: recover back moneys paid for intoxicating liquors illegally .sold was conferred upon the vendee as a means of deterring parties from !I(l!ling liquors contrary. to the statute, and as a punishment in case the slllt1l!,were in fa.ct made. 1t is one of the prOVisions of the statute, adopted for the purpose of preventing violatiQns of the statute,or,in other words, itiJl an aid to the enforeement of one of the police statutes of the state, ,a.ndti:le q\l6Stion is whether, under the decision of the supreme court in InBurance Co., 127 U. S" 265, 8 Sup. Ot. Rep. 1370. this C<)Q'rt 911gbt to tlndertake the enforcement thereof. In the view taken of facts, it is not necessary to decide this :question,:as, irrespective there<:>f,good ground for holding that defendant cannot recover upon his counter-claim. Thaconclusioll reached .is that plaintiffs cannot maintain their action for the reasons stated, and judgment thereon must bein favor of defendant at cost of plaintiffs, and that the defendant cannot maintain his counterclaim, and judgment tb.ereon must be in favor of plaintifts, at cost of defendant.
SOUTHERLAND 'D. NORTHERN PAC. (Circuit Oourt, D. Minnll8ota. '!l4Il'l'BR Am>. ."
R. Co.
October 18,181l0.) '.' .
In an &Qt1on against a railroad companyfol' personal injuries, the evidence showed that plaintifr was employed by defendant to make up tralns in its yard; that, while . .coupling 9arll in the yard at night, his foot caught in a pile of ashes left on the . track, him to fall and be run bveJ,'; and that it was. the duty of the section foreman,to keep the traOk olear. There was evidence that asbes were not usually yard. that the evidence a .r81'(j,ict for plaii;ltifl.
" .f
1Q4n a,
ftfc{)(Y(UJ.14,
-.Q,n motion'.for new trial. Barnard,. for plaintiff. Ir., fO,r defendant.
SOUTRERL&ND1i. NORTHERN PAC; R. CO.
647
NELSON, J. This suit is brought to recover damages for injuries received by the. plaintiff while working for .thedefendant as;a switchman on It track called the "house track," in the yard at Missoula, Mont. He had charge of the yard crew:on the nightwben injured in making up trains and taking out empty cars. In coupling cars, he caught his foot in a threw him down, and pile, of ashesQn. the track petween the: the of one of the cars ran over him. The pile of ashes about four feat' long, and six or seven inches high,betweenthe rails,and showed the:appearance of having been pushed'down by the brake-bea,ms or sand-boards of cars running over it. The duty of the section foreman was to keep this track clear, and remove ashes if dropped upon it. 'It waa.subnliitedtothejul'yto.determine the evidence whether the heap of ashes was of an immense size so as to form an obstruction and interfere with the plaintiff in the discharge of his duty. The evidence w3{l abput the cust9m of dum ping in the yard, but there was eVidence tendIng tt> show that, at the trme plaintiff worke<Hn this yard, and previous therf)to, ashes were usually dumped at or tieara coal-shed; and. not in the yard. The gist of the action is that the defendant WBs'tlegligp.nt in pennittingits road-bed, which the plaintiff was compelled to go upon in the discharge of his duty, to become obstructed, the danger incident to his employand th!1s increasing, ment/,; his urged by defendant that the injury was'occasioned either by the plaintiff's own negligence or by the negligence of a fellow-servant in the same common employment, viz., the negligence of the firemanin dumping ashes on the track, or the negligence orsome person whose duty it was to keep the track clear of obstruction. It cannot be llssumed frOID the evidence that the situation which caused the plaintiff to'catch his footwiuupparent and the question of plaintiff's knowledge of the condition of the track at the place of injury by the exercise . of ordinary care was properly SUbmitted to the jury. The court would not hll.ve been justified in holding that the defendant was not liable.forihe negligence of the person upoilwhom the. duty was imposed of clearing the trackRin the yard, if such negligence caused the injury; nor could this court properly say to the jury that the custom of dumping ashes on the track wasknowll to the plaintiff, and, if it was an unsafe and careless custom; it was a risk assumed by him. The case of Filbert v. Canal <h.· 23N. E. Rep. 1104, (N. Y.Ct App.,}relied upon by defendant's counsel,was decided on the authority of many New York cases, which the learned judge who wrote the opinion "are ample authority for the opiilionreached." I agree with the text-writers on Shearman & Redfield, (see note to section 234,) that in some, if not all, of the cited c:laseB, the rule seems to· have been erroneously applied to work of superintendence. Motion for new trial denied.
648
FEDERAL REPORTER,
vol. 43.
BALKHAM
et al. v.
WOODSTOCK IRON
CO. et al.
(Oircuit Oourt, N. D. Alabama, S. D. 1890.) 1. ADVERSE POSSESSION,....cOLOR Oll' TITLE.
estate of a te9tatorwas sold by thE! administrator by order of court in 1800, the widow becoming the purchaser, and thereafter holding the land under sl1ch 'salfl until she sold the same to other parties. that though the order of sale may. nav.e been void, the deed in pursuance thereof,lor which the widow paid a valuable cohsideration, is sufficient color of title to make her possesaion; and that of those claiming under her, adverse to the heirs. Where the heirs bring suit to recover such land in 1889, their recovery, under the laws. of Alabama, is Darred by the lapse of more than 20 years from the date of the aale by the administrllotor.
2,
LIMITATIONS-AcTION 1I'0R LAND.
At Law. In!lGcordnnce with the instruction of the court, the jury returned a verdict ·for. defendant. ,Jarn.e.s H. Savage, Kelley &- Smith, and Smith & Lowe, for plaintiffs. Knox« Bowie, Caldwell &. Johnson, D. O. Blackwell, and Brother8, Wil. lett & Willett, for defendants. BRUCE, J. This suit is in ejectment. There is an in writ. ing as to the facts in the case. The plaintiffs are the only heirs at law ofoneSaJnuelP. Hudson, who died: intestate on the -.-day oiAugust, 1863. ,He was at the time of his death seised and possessed of the land in controversy , together with, other adjoining lands, and left surviving him a widow,KeziahA. Hudson, who rlied 26, 1879. Prior to 1866, one J. F. Grant was the regularly appointed administratOl: of the estate ,of Samuel P. Hudson, and took possession of the estate as such administrator,' including the land in question. On the 20th day of Mltrch, 1866, James F .. Grant, as administrator, under the order of the probate COilrt of' Calhoun oounty, Ala., sold· the land in controversy, sub· ject to the widow\s right ofdower, and at such sale KezilJ,h A. Hudson., widow of Samuel P. Hudson, became the purchaser of the land in suit for the sum of $450, which amount she paid to the administrator in cash, and he executed a deed of conveyance to her of the property. That she, Keziah A.Hu.dson, was in possession of the land, at the time, and continued to hold possession of the same until the 28th of October, 1869, when 'she conveyed it to Sherman and Boynton, by deed in the USu.al form, and surrendered possession to the grantees Sherman and Boynton, who afterwards conveyed to Hill Jeffers, who in turn, in 1874, conveyed to the Woodstock Iron Company, defendant inthissuit,who afterwards Comsold and conveyed the land to the Anniston Lanli & pany, who in turn sold and conveyed it to the Anniston City Land Company. All these conveyances were in the usual form of deeds of warranty in fee-simple, and were duly recorded. James F. Grant, the administrator, died in the year 1878, and Alexander Woods, who was probate judge during the administration of the estate of Hudson, de-