12. Where the judge charged the jury that it was impossible to show that a surgeon possessed the skill required, except by showing what skill he applied in the treatment of the particular case; it was held that if this part of the charge was to be construed by itself, without reference to other parts of it, the proposition could not be supported. But that if construed (as the context warranted,) as an instruction that the defendant was required to have an ordinary degree of skill, and whether he had any more was wholly immaterial, it was correct. ib

13. That a physician or surgeon possesses skill, may be shown by the testimony of members of the same profession who can speak from personal knowledge of his practice. When the point in issue is, whether skill was applied in a given case, the possession of skill, without proof that it was applied, would be no defense to an action for malpractice. But there may be cases in which such proof is admissible. Per MULLIN, P. J. ib

14. When it is proved that the surgeon has omitted, altogether, the established mode of treatment, and adopted one that has proved to be injuri ous, evidence of skill, or of reputation for skill, is wholly immaterial, except to show (what the law presumes) that he possesses the ordinary degree of skill of persons engaged in the same profession. In such a case, it is of no consequence how much skill he may have; he has demonstrated a want of it, in the treatment of the particular case.

ib

gligence of the plaintiff contributed to the injury, the defendant was not responsible, is not erroneous, when put upon the ground that there was no evidence, in the case, of the plaintiff's negligence; or, if there was any negligence, it was the result of ignorance on the part of the plaintiff as to how the injured limb should be treated, which ignorance it was the duty of the defendant to remove. b

17. Where the judge charged the jury

that a surgeon contracts that he will bring to the case that ordinary and reasonable degree of skill which is possessed by the average of his profession;" that "he undertakes to bring to the case the exercise of that reasonable degree of skill ordinarily possessed by the members of the profession"-adding the remark"I think it the reasonable rule that he is required to exercise the average skill of his profession;" Held that the judge having first laid down the rule correctly, a change of phraseology, in the latter part of the instruction, did not change the rule; it being obvious that in the last sentence he did not intend to modify or vary the rule previously stated.

18. If the case is a new one, the patient

must trust to the skill and experience of the surgeon he calls. So must he if the injury or disease is attended with injury to other parts, or other diseases have developed themselves for which there is no established mode of treatment. But when the case is one as to which a system of treatment has been followed for a long time, there should be no departure from it, unless the surgeon who does it is prepared to take the risk of establishing, by his success, the propriety and safety of his experiment. Per MULLIN, P. J.

PLEADING.

See ANSWER. COMPLAINT. EQUITY, 1, 2.

POWER.

When a public body is clothed with power to do an act, which the public

3. When a nonsuit is moved for upon the whole case and evidence, and the right judgment or decision is rendered, it will not be set aside, as a general rule, upon exceptions to such decision, because an erroneous reason was given for denying the motion. But if the point presented for the motion be a sound one, it must be clearly avoided or overreached by other clear facts or points in the case; or else an exception to the erroneous ruling must prevail. Shoemaker v. The Glens Falls Insurance Company, 84

The 33d section of the Code, which provides that in case of the death of a sole plaintiff, the action may be continued in the name of his representatives or successor in interest, does not apply to a case where a sheriff sues as such, and dies during the term at which the action is tried, and his deputy is also dead. Orser The Glenville Woolen Company, 371

7. Such a case is provided for, however, by the Revised Statutes, which direct that "where an action is authorized or directed by law to be brought in the name of a public officer, his death or removal shall not abate the suit, but the same may be continued by his successor; who shall be substituted by the court, and a suggestion of such substitution shall be entered on the record." (3 R. S. 670, 5th ed.) ib

See CREDITORS.

EVIDENCE, 5 to 8.
HIGHWAYS, 7, 8.
INFANTS.

JURISDICTION.

USURY, 1, 2.

PREMIUM NOTES.

See INSURANCE COMPANIES.

PRINCIPAL AND AGENT.

1. It is well settled that a debtor is authorized to pay to an agent any sum which is due upon a security which has been entrusted to the agent by the holder, for the purpose of collecting any part of it; as where the agent has been authorized to receive the interest, only, but receives the principal. Doubleday v. Kress, 181

2. Indeed the authorities go to the extent of holding a payment valid, made to an agent who is merely entrusted with the possession of the security, without express authority to receive or collect any part of it. The ostensible authority attributed to a party to whom is entrusted an instrument to secure the payment of money, is to receive payment according to its terms. Per TALCOTT, J. ib

3. The principal is, as to third per-
sons, not having any notice of a
limitation, bound by the ostensible
authority of the agent, and cannot
avail himself of secret limitations
upon the authority and repudiate
the agency, where innocent third
persons have in good faith acted
upon the ostensible authority con-
ferred by the principal.
ib

4. The plaintiff held a promissory note
for $800 and interest, payable to her
order, at the office of W., made by
the defendant. When it fell due, the
plaintiff, without indorsing the note,
handed it to M. to present for pay-
ment. M. accordingly presented the
note, at the place of payment, to-
gether with a forged order upon W.
purporting to be signed by the plain-
tiff, requesting W. to pay her money
to M. The principal and interest
was thereupon paid, by W., and the
note delivered up and canceled, and
M. absconded with the $800. Held
that the payment was clearly valid,
both upon authority and principle,
and discharged the note.

ib

2.

3.

but was at his residence in this State,
where he had committed no criminal
offense for which he could be ar-
rested or imprisoned; having made,
at most, as was alleged by the payee,
only some fraudulent representa-
tions in respect to the value of land
upon which he had a mortgage that
he had sold to the payee of the
note; which sale, and the represen-
tations that induced it, were made
in the State of Illinois; it was held
that as there was no ground for the
defendant's arrest, in either State,
on a criminal charge, or for his being
taken to Illinois in any criminal pro-
ceeding for such fraud, a threat of
such an arrest constituted no defense
to an action upon the note.
v. Hyde,

Knapp
80

Where, in an action upon a promis-
sory note, the case does not show
that the note was negotiable, its
negotiability will not be presumed.
Evans v. Williams,
346

If a note is not negotiable, the as-
signee takes it subject to all defenses
of the maker against the payee;
whether it be due at the time of the
assignment or not; the same as the
holder of a negotiable instrument
does, who takes it after it has be-
come due.

See ANSWER 3.

GENERAL ISSUE.

MARRIED WOMEN.

MENACES.

PRINCIPAL AND AGENT, 4 to 7.
USURY 1.

PUBLICATION.

See PARTITION, 8.

ib

R

is

PROMISSORY NOTES.

1. Where the defendant, at the time
of making a promissory note, was
not under arrest or imprisonment,

RAILROAD COMPANIES.

1. In an action against a railroad com-
pany, to recover damages of the
defendant, for causing the death of
the plaintiff's intestate, a brakeman
in its employ, by negligence, the
defense was that the intestate was
guilty of negligence, or want of

care, which contributed to his death,
in being absent from his post, at
the time, and omitting to apply the
brakes. And the evidence rendered
it more than probable that but for
such absence, his life would not
have been endangered. Held that it
was erroneous for the judge to leave
it to the jury to determine whether
the intestate being absent from his
post, warming or enjoying himself
by a fire, was guilty of contributory
negligence; whether the absence of
a caboose did not authorize him to
leave his post, in a cold morning;
and whether the train being on an
ascending grade, he had not a right
to suppose his services were not as
likely to be called in request as they
would be on a downward grade.
Sprong v. The Boston and Albany Rail-
road Co.

30

2. And that it being probable that
the jury were influenced by these
considerations, so submitted to them,
was a proper case for a new trial.
ib

3. The defendants owned and operated
two tracks between Syracuse and
Rochester, upon different routes,
one of which (the Auburn route)
was longer than the other, and upon
which forty-five cents more was
charged, for passenger fare, than
was charged upon the shorter route
(via Palmyra.) The plaintiff pur
chased a ticket at Syracuse, for
Rochester, which had, upon the face
of it, the words "via Palmyra," pay-
ing therefor the lesser fare, and got
upon a train bound for Rochester,
by the Auburn route. Upon ex-
hibiting his ticket, the conductor
told him that he was on the wrong
train; that he could not go to Roch-
ester on that train unless he paid
forty-five cents more; and that the
ticket would carry him to F. (the
next station,) and no further. The
plaintiff said he expected to go
through on that train, and would
not pay any more. The conductor
thereupon marked the ticket, with
his punch, and returned it to the
plaintiff. He again came to the
plaintiff and asked him if he was
going to pay the additional forty-five
cents, and being answered in the
negative, he told the plaintiff he
must get off at F., and on arriving
there, ordered the plaintiff to leave
the train, and upon his refusal, put

4.

him off the cars, as he was required
to do, by his instructions. In an ac-
tion to recover damages for such
ejection, the referee reported in
favor of the plaintiff, on the ground
that the conductor, instead of punch-
ing the plaintiff's ticket, should have
expelled him from the cars upon
discovering that his ticket was by
the other route, and his refusing
to pay the additional fare. Held,
that this was erroneous. That the
conductor was under no obligation
to the plaintiff to eject him from the
cars, at any time before he should
arrive at the point to which he was
entitled to travel, on his ticket, so
long as he persisted in remaining
on the train. Adwin v. The New York
Central, &c., Railroad Co.
590

That the plaintiff having taken this
train through his own fault or inat-
tention, his voluntary continuance
upon it, after being fully notified of
the consequences, must be deemed
an election, on his part, to abide by
the regulation of the company, since
it was one lawful and proper to be
made and to enforce.

RECEIVER.

See CREDITORS.

REFEREE.

See REPORT OF REFEREE.

REFORMATION OF DEED.

1. To constitute a defense to an action
of ejectment on the ground that the
language and legal effect of a deed
differs essentially from the intent
of the parties, a case must be pre-
sented which would induce a court
of equity to interpose and reform
the defective instrument; not that
it is absolutely necessary, in such a
case, that a judgment reforming the
instrument should be pronounced,
if the defendant is content to waive,
or does not demand, such full relief.
For the judgment that he recover
in the action is giving him the full
effect, so far as the title to the prem-
ises in controversy is concerned, of

1. The fact of res adjudicata is not to
be made out by inferences. An
estoppel requires strict proof. A
fact cannot be held to have been
adjudicated in a former suit, unless
it so expressly appears by the record,
or, at least, it is clearly shown by
evidence aliunde, that it was deter-
mined. Bissell v. Kellogg,
617

2. Where there is a trial by the court,
the judge who tried the cause, being
required, in settling the case, to
specify the facts found by him, and
his conclusions of law, the facts thus
specified are conclusive upon the
parties, in that case, if founded on
sufficient evidence; and there is no
reason why they should not be con-
sidered as res adjudicata for all pur-
poses, the same as though contained
in the original findings of the judge.
ib

3. Where it appeared by the record
of a former recovery, that the ques-
tion whether a certain mortgage was
executed upon a usurious contract
was in issue in that case, and that
the fact of usury was found by the
judge; it was held, in a subsequent
action, brought by the defendant in
the former suit and his privy in

RES GESTÆ.

See EVIDENCE, 8.

S

SEDUCTION.

1. In action by a father, to recover
damages for the seduction of his
daughter, evidence of a promise of
marriage, made by the defendant to
the daughter, previous to the seduc-
tion, is inadmissible. Whitney v.
Elmer,

250

3. The judge instructed the jury that
"if they found that the defendant
promised to marry the plaintiff's
daughter, before he had sexual in-
tercourse with her, they were at lib-
erty to consider that, with other cir-
cumstances attending her seduction;
and they might also regard it as
one of the circumstances of the
case, in determining the damages to
be recovered by the plaintiff, not
for the purpose of giving damages
for a breach of promise of marriage,
but as one of the circumstances at-
tending, and under which the seduc-
tion of the daughter was effected."
The defendant's counsel excepted
to this instruction, and requested
the judge to instruct the jury that
the plaintiff was not entitled to re-
over any additional damages on
account of the promise of marriage;
which request the judge refused.
Held that the defendant was entitled