the instructions not sustained by the authorities cited, and for the same reason, the court was warranted in refusing the instructions asked by defendant. The last and only error to which our attention is called is that the damages are excessive. In view of the fact that the jury found a verdict for $800, and that the trial court which heard all the testimony, determined that it should sustain a verdict for $500, we do not feel at liberty to disturb the judgment.

Our conclusion is that the three allegations necessary to be made and proved in a case of this character -First, that the dog was vicious and in the habit of biting mankind; second, that the defendant knew it; third, that he bit and injured the plaintiff without any neglect or fault on his part were fully and satisfactorily established. We think the verdict ought not to be disturbed.

The judgment will be affirmed.

MASTER AND SERVANT-NEGLIGENCE DISMISSAL OF COMPLAINT.

NEW YORK COURT OF COMMON PLEAS, GENERAL TERM, JUNE 1, 1891.

CONLIN V. RODGERS.

Plaintiff's intestate while in defendant's service was ascending a shaft through which he went to and from his work in a tunnel. The cage had iron guard-rails, a top and middle rail, with two uprights. The middle rail in the rear had been cut out for over three weeks, leaving a space four feet high. He had been going up and down in the cage for several months. He was alone in the cage and fell from it and was killed. No one saw him leave the cage, or testified how he came to fall, nor was it shown that he fell through the space left by the absent rail. Held, that it was not error to dismiss the complaint at the close of the plaintiff's case.

MOTIO

[OTION for new trial, on exceptions heard at General Term.

Action for damages for the death of plaintiff's intestate, alleged to have been caused by the defendant's negligence. On the conclusion of plaintiff's case the complaint was dismissed "on the ground that the plaintiff has not proven facts sufficient to constitute a cause of action."

The head-note states the facts.

John M. Coman, for appellant.
Nathaniel Smith, for respondents.

PRYOR, J. Upon this state of fact the question is, Was it error to dismiss the complaint? Or to present the point in another form, was it the legal duty of the court to submit the case to the jury?

The rule is familiar and fundamental, that to authorize a recovery in such an action as the present, the plaintiff must prove that the defendant's negligence was the cause of his injury. But before this issue can be referred to the jury, the court must determine a preliminary question, namely, whether there be sufficient evidence to warrant the inference that the defendant's negligence was the cause of the injury. If there be such evidence the case must go to the jury, and it would be error to withhold it from them. If there be not such evidence the case must be withdrawn from the jury, and it would be error to submit it to them.

"If the evidence would not authorize the jury to find a verdict for the plaintiff, or if the court would set it aside if so found, as contrary to evidence, in such case it is the duty of the court to nonsuit." Willard, J., in People v. Cook, 8 N. Y. 67, 74.

"The judge has a certain duty to discharge, and jurors have another and a different duty. The judge has to say whether any facts have been established by evidence, from which negligence may reasonably be inferred; the jurors have to say whether, from those facts, negligence ought to be inferred." Lord Cairns, in Met. R. Co. v. Juckson, 3 App. Cas. 143, 197; Lord Blackburn, p. 207.

"Nor are judges any longer required to submit a question to a jury, merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what is called a scintilla of evidence in support of a case, the judge was bound to leave it to the jury; but recent decisions of high authority have established the more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it." Miller, J., in Improvement Co. v. Munson, 14 Wall. 442, 448; Commissioners v. Clark, 94 U. S. 278, 284.

"It is not enough to authorize the submission of a question as one of fact to the jury, that there is some evidence. A scintilla of evidence, or a mere surmise, that there may have been negligence on the part of the defendant, would not justify the judge in leaving the case to the jury." Ruger, C. J., in Dwight v. Insurance Co., 103 N. Y. 341, 359.

A refusal to nonsuit, in a case where a nonsuit would be proper, is error requiring a reversal. Wendell v. Railroad Co., 91 N. Y. 420, 429; Lomer v. Meeker, 25 id. 361.

We are of opinion, that from these principles, the dismissal of the complaint was a necessary corollary.

Assuming the negligence of the defendants, as charged in the complaint, the burden was still upon the plaintiff to prove that the negligence was the cause of the injury to her intestate; in other words, that the fall of the intestate was due, as alleged, to "the unsafeness, defectiveness and insecurity of said car or cage." But the manner and occasion of his leaving the cage are not apparent on the evidence. No witness saw his exit from the cage; no witness testifies how he came to fall from the cage; no witness says he fell through the space left by the absence of the rail. It is evident enough that he might have fallen from the cage otherwise than through that space; thus he might as well have fallen over the top rail as have slipped under it. Nothing in the case points to the latter rather than to the former alternative. Had the jury found that the intestate fell through the interval left by the removal of the rail, the finding would have been, not a legitimate inference from the circumstances, but a surmise or conjecture of a fact utterly without evidence. But the law demands proof, and not mere surmises." Bond v. Smith, 113 N. Y. 378, 385; Riordan v. Steamship Co., 36 N. Y. St. Rep. 476. "These are mere conjectures, without any basis in the evidence to support them." Reynolds v. Railroad Co., 58 N. Y. 248, 252.

"It was for the plaintiff to show how the accident occurred, and to prove negligence of the defendants in respect to some matter that caused it." Dobbins v. Brown, 119 N. Y. 188. If the evidence be equivocal, and point equally to another fact and the fact in controversy, the proof is insufficient to establish the latter. Cordell v. Railroad Co., 75 N. Y. 330, "When the balance is even as to which party is in fault, the one who relies upon the negligence of the other is bound to turn the scale." Erle, C. J., Cotton v. Wood, 8 C. B. (N. S.) 568.

was of any value whatever. The entirely unnecessary demand that each of the ten defendants be fined $2,000 was not a claim that could form the basis of an allowance any more than would a request at the trial that the discretion of the court in that regard be exercised. June 23, 1891. People, ex rel. Winans, v. Adams. Opinion by O'Brien, J. 38 N. Y. St. Rep. 880.

DAMAGES-MEASURE OF, ON BREACH OF CONTRACT.— Defendants contracted to ship fifteen thousand tons of ice from Maine to plaintiff in New York. The agreement fixed $1.50 per ton as liquidated damages. Upon the trial, neither party excepting, the court received evidence of the sums paid by plaintiff to purchase a quantity of ice equal to that whieh defendants failed to deliver, and instructed the jury that they should give the actual damages sustained, i. e., the difference between the price named and the sum paid by plaintiff to make good the deficiency, adding that the "Shrinkage of the Maine ice should be added to the price in fixing the amount of damages." This was fifteen per cent of the cargo. There were nine thousand three hundred and eighty-eight tons undelivered, and the verdict was for $8,918.60. Held, error; that as the shipping was to be done in Maine, the shrinkage was the plaintiff's loss, and should have been added to the contract price, and the product deducted from the price actually paid by plaintiff under the rule fixed by the court. (2) Even though the rule of damages may have been erroneous, as it was acquiesced in by both sides, the defendant should have the full benefit of its proper application to the case. Second Division, June 23, 1891. Clark v. Stewart. Opinion by Brown, J.

EVIDENCE-WORK DONE AND MATERIAL FURNISHED -WRITTEN AND ORAL TESTIMONY.-Plaintiff did work and furnished material to be used upon the engine, boiler and machinery of defendant's yacht, at the request of Pugsley, defendant's engineer. Upon the trial Pugsley's deposition was read, which stated that he received a bill made out by plaintiff, which he returned for correction, and afterward received a second corrected bill, which he approved by writing upon its face. Defendant also testified that he had received a bill which he had sent back to plaintiff for corrections and as he thought the signature of the engineer thereto. Held, that in view of the facts it was not improper for Pugsley to testify that he audited the bill, not as a proof of the correctness of the bill, but as showing a compliance with the requirements of defendant. (2) The court erroneously allowed the engineer to state as to whether the contract which was in writing and was for lengthening the yacht, included any work on the engines and machinery. Held, that as the construction of the contract given by the engineer was correct, no harm resulted to the defendant by the evidence, and so it would not be a ground for reversal. Second Division, June 28, 1891. Avery v. Starbuck. Opinion by Haight, J. 38 N. Y. St. Rep. 901.

LIMITATION OF ACTION-MISMANAGEMENT OF WIFE'S ESTATE.-On reference of a claim against a decedent's estate by his wife, the referee found that she had a separate estate which was managed by her husband; that he kept an account in which he credited himself with sums claimed to have been paid out for her; that certain of said charges were improper and for disbursements for which he was legally liable, but that the statute of limitations ran against two items entered six years prior to the date of the action. Held, error; that under the rule that payments made upon an account will, if nothing appears to the contrary, be deemed applied to the earlier items of it, the amount remaining unpaid may be found in or represented by the later ones, the moneys improperly entered as paid out or charged by him would be treated as still re

maining in his hands. The use by the wife of her own money for the purchase of clothing and necessaries for herself would not create a liability to her of her husband for the amount so expended, without the aid of circumstances out of which might arise a promise to repay it to her. Jacques v. M. E. Church, 17 Johns.

548; Hendricks v. Isaacs, 117 N. Y. 411; T. N. Bank v. Guenther, 123 id. 568; Romer v. Koch, 49 Hun, 483. The fact that she received the moneys so charged in the account is not questioned. And nothing appears in the evidence to justify the conclusion of the referee that Mrs. Johnson was entitled to recover the amount for which recovery was allowed by him of the cash items so charged to her or credited to the defendant's testator as payments on account of moneys received by bim from her separate estate. Second Division, June 23, 1891. Nostrand v. Ditmis. Opinion by Bradley, J.

PROBABLE

CAUSE

MALICIOUS PROSECUTION PENAL CODE, § 639.-The defendant had permission at the will of the Brooklyn park commissioners to connect a system of water pipes with their main. They withdrew their permission and directed plaintiff, one of their officers, to disconnect the system. Upon his doing so, defendant swore out a warrant without disclosing the fact that defendant was acting under orders of the commissioners, upon which he was arrested and discharged. Held, that as there was evidence that the work of disconnecting was done in a proper manner, and so as to cause no unnecessary injury to the defendant's pipes, there was no probable cause for the arrest. (2) The word "wilfully " in the statute means more than a voluntary act, and more also than an intentional act which in fact is wrongful. It includes the idea of an act intentionally done with a wrongful purpose, or with a design to injure another, or one committed out of mere wantonness or lawlessness. June 23, 1891. Wass v. Stephens. Opinion by Andrews, J.

MORTGAGE-FORECLOSURE-PAYMENT-PRESUMPTION-POSSESSION OF BOND.-In an action to foreclose a mortgage, the parties in possession of the premises produced the boud, but failed to produce the mortgage or satisfaction-piece, and there were no indorsements of payments on the bond, which was evidently mutilated,and no explanation was made by defendants, either as to that or as to the change made in the auswer, which made it appear that the payment was made to some one other than the plaintiff. Held, the inference of payment was rebutted by the circumstances surrounding the possession of the bond. Second Division, June 23, 1891. Anderson v. Culver. Opinion by Parker, J. 38 N. Y. St. Rep. 889.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

ALIENS RIGHT TO TAKE BY DESCENT.- Laws of New York of 1845, chapter 115, as amended by the Laws of 1874, chapter 261, provides that those aliens who, according to the statutes of New York, would answer to the description of heirs may take by descent from any alien resident, or any naturalized or native citizen of the United States, who has "purchased" and taken, or shall hereafter "purchase" and take, a conveyance of real estate. Held, that the statute gives the right of transmission by descent only to resident aliens and naturalized or native citizens; that it attaches only to land acquired by purchase, and that it contemplates only one step of transmission to alien heirs. This legislation does not, in terms, enlarge the capacity of aliens to take by descent from non-resident

aliens, or to take by descent from resident aliens or naturalized or native citizens who have not acquired lands by purchase. It is expressed in unequivocal language, and must be taken to mean what its language implics. There is a clear distinction, which has always been recognized in the law of real property, between titles acquired by purchase and titles acquired by descent. The latter vest by operation of law. It cannot be supposed that the Legislature were unaware of this distinction, or that they employed the language of the statute unadvisedly. The meaning of these statutes has been considered in two adjudicated cases by the highest court of the State, but in neither of these cases was the precise question which is now presented under consideration. Speaking of the act of 1845, the Court of Appeals have said, in Goodrich v. Russell, 42 N. Y. 177, that it gives to a resident alien who takes title by grant of real estate the same power of transmitting such title by descent as a citizen, and to this extent gives an inheritable quality to the blood of aliens. And in Stamm v. Bostwick, 122 N. Y. 48, the Court of Appeals, referring to the effect of the original and amendatory statutes, declare that the word "purchase," as used therein, should be given its broadest meaning, and includes all land acquired by devise. These adjudications are authority inferentially for the proposition that the legislation does not affect titles which have not been acquired by resident aliens, or native or naturalized citizens, nor titles which have been acquired by any person of these classes otherwise than by purchase; that is, by grant or devise. The only case in the courts of this State which directly adjudicates the present question, which has been called to my attention, is one decided by the Supreme Court in June, 1881, the case of Harrison v. Harrison, 3 N. Y. Law Bul. 65, decided by Bartlett, J. In that case the court says: "The non-resident aliens took under the act of 1845. They so took as if they were citizens; consequently with full power of disposition and transmission. Dying intestate, the estate passed to their heirs at law, capable of taking by descent or devise; that is, to such of their heirs as were citizens, but not to such as were non-resident aliens." The act makes no provision for the latter, nor indeed specially for the former; they taking as an incident to the power of disposition and transmission conferred upon the original non-residents. U. S. Circ. Ct., S. D. N. Y.,' May 15, 1891. Branagh v. Smith. Opinion by Wallace, J. 46 Fed. Rep. 517.

amount.

ASSIGNMENT FOR BENEFIT OF CREDITORS PREFERENCES WHEN FRAUDULENT. The firm of M. & N. were successors to M. & H. H. sold out his interest in the property and business to N. The firm of M. & H. then owed one M. $1,000. This debt was assumed by the new firm, and they gave H. a note for the M. & N. afterward made an assignment for the benefit of creditors, and preferred H. for the amount of the note given, but in the inventory the debt was specified to be on the note held by M. Held, that the preference was not fraudulent, being made to secure the debt due M. from the assignors. N. Y. Sup. Ct., Gen. Term, Second Dept., May 11, 1891. Smith v. Smith. Opinion by Barnard, P. J. 39 N. Y. St. Rep.

46.

INTER

CARRIERS LOSS OF GOODS GAME LAWSSTATE COMMERCE.-(1) Ownership of property by the plaintiff, its delivery to and acceptance by a common carrier for transportation, and its non-delivery to the consignee, are prima facie evidence of negligence. The burden then rests upon the carrier to show facts exempting it from liability. Lamb v. Railroad Co., 66 Me. 241. (2) The property of the plaintiff, while lawfully in the possession of the defendant as a common carrier, was seized unlawfully by an officer, without any warrant or legal process, nor was any afterward

obtained. Held, that the officer was a trespasser, and that the common carrier was liable in the same manner as if it had allowed any other trespasser to take the property out of its custody. Adams v. Scott, 104 Mass. 166; Kiff v. Railway Co., 117 id. 593; Fillebrown v. Railway Co., 55 Me. 462. In the case of Edwards v. Transit Co., 104 Mass. 163, it was held, that while the carrier was not liable in trover for conversion of the property, he was nevertheless liable on his contract or obligations as common carrier, where the officer seizing the property was a trespasser. "The owner may, it is true," say the court, "maintain trover against the offi cer who took the property from the carrier; but he is not obliged to resort to him for his remedy. He may proceed directly against the carrier upon his contract, and leave the carrier to pursue the property in the hands of those who have wrongfully taken it from him." (3) Revised Statutes, chapter 30, section 12, which imposes a penalty for killing, destroying or having in possession, during certain portions of the year, "more than one moose, two caribou, or three deer," does not apply to common carriers in the performance of their duties. This property was lawfully the property of the plaintiff. It was delivered to and accepted by the defendant company for transportation to a point beyond the limits of this State. Their liability as common carriers held them to a strict fulfillment of their obligation in relation to the property in their charge. That obligation was not merely to transport the property in this State, but to a point outside of its limits in another State. It had lawfully commenced to move as an article of commerce from one State to another. From that moment it became the subject of inter-State commerce, and as such was subject only to National regulation, and not to the police power of the State. The same is unquestionably true in relation to whatever agency or instrumentality may be used as the means of transporting such commodities as may lawfully become the subject of purchase, sale or exchange, under the commerce clause of the Constitution of the United States. The transportation of the subject of inter-State commerce, where it is such as may lawfully be purchased, sold or exchanged, is without doubt a constituent of commerce itself, and is protected by and subject only to the regulation of Congress. The Daniel Ball, 10 Wall. 557, 565; Bowman v. Railway Co., 125 U. S. 465, 485; County of Mobile v. Kimball, 102 id. 691; Welton v. Missouri, 91 id. 275; Coe v. Erroll, 116 id. 517; Leisy v. Harden, 135 id. 100. Me. Sup. Jud. Ct., March 24, 1891. Bennett v. American Express Co. Opinion by Foster, J.

CARRIERS -OF PASSENGERS REFUSAL TO ACCEPT TICKET.-Where the conductor of a railroad train returns to a passenger the wrong portion of a return-trip ticket, and another conductor on the return trip refuses to accept it after the mistake is explained to him, and ejects the passenger from the train, the railroad company is liable. The decisions are in direct and palpable conflict upon the liability of a common carrier for failure to transport a passenger under the circumstances named. In New York, Michigan, Illinois, Maryland, Ohio, Wisconsin, Connecticut, New Jersey, Massachusetts and North Carolina, it seems to have been decided that the ticket presented by the passenger is the only evidence of his right to travel upon the train which can be recognized by the conductor; and that if by reason of the negligence of other servants of the carrier, a wrong ticket has been given to the passenger, or the right ticket has been given to him, but erroneously taken from him, the passenger's right of action is for the wrong thus committed; and that he may not insist upon his right to travel on the wrong ticket, or without it, where it has been taken up, and recover damages for the refusal of the carrier to permit him to do so; and that the car