66 held that the act of the defendant in error was not only lawful, but it was highly commendable; nor was he in any legal sense responsible for the emergency that called for such prompt decision and rapid execution," and it adopts the. language of our Court of Appeals in a similar case (Eckert v. Railroad Co., 43 N. Y. 502) to the effect that "the law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under circumstances constituting rashness in the judgment of prudent persons;" and it concludes that under the circumstances "it would be unreasonable to require a deliberate judgment from one in a position to afford relief. To require one so situated to stop and weigh the danger to himself, of an attempt to rescue another, and compare it with that overhang-victions on which sentence remains to be proing the person to be rescued, would be in effect to deny the right of rescue altogether if the danger was imminent." Humanity as well as law makes a distinct gain by such a decision. other distinct offense; and it is now generally conceded throughout the United States that the doctrine that a conviction for another distinct felony, committed either before or after the first conviction, or while the criminal is serving out his sentence thereon, does not prevail in this country, and is as repugnant to the established principle of modern criminal law as it is unsupported by reason. Rex v. Vandercomb, 1 Lead. Crim. Cas. 528; Archb. Crim. Pr. (Pom. Notes) 350; State v. Commissioners, 2 Murph. 371; State v. McCarty, 1 Bay, 334; 1 Bish. Crim. Law, §§ 731-884, 898, 953. Again, referring to Bishop's Criminal Law, the writer lays down the rule to be that when a prisoner, under an unexpired sentence of imprisonment, is convicted of a second offense, or when there are two or more con NOTES OF CASES. nounced, the judgment may direct that each succeeding period of imprisonment shall commence on the termination of the period next preceding.' 1 Bish. Crim. Law, §§ 731, 884; Comp. Laws Utah, 1888, §§ 4746, 4749, 4750; In re Nerac, 35 Cal. 393; People v. Forbes, 22 id. 136; Mc Quoid v. People, 3 Gilm. 76; Bryan v. Atwater, 5 Am. Dec. 136, 142; Com. v. Goodenough, Thacher Crim. Cas. 132; Kite v. Com., 11 Metc. (Mass.) 581; Reg. v. Bird, 2 Eng. Law & Eq. 439; Mahon v. Justice, 127 U. S. 700; Ker v. People, 119 id. 437. In the case of People v. Majors, 65 Cal. 138, it is held that a person may be tried and convicted for the crime of murder, notwithstanding he is at the time of the trial and sentence serving out a previous sentence of life imprisonment for another murder, committed at the same time, and imposed by another court. So in the case of People v. Hong Ah Duck, 61 Cal. 387, it was held that on a trial for murder it was competent for the prosecution to show that at the time of the homicide the defendant was a convict in the penitentiary, serving out a life sentence, and that the homicide was committed while so imprisoned, the object being to give the jury to understand that if they found the defendant guilty of murder in the first degree, with a recommendation to imprisonment for life, and by said verdict fixed the imprisonment for life, the punishment would be no more than the [N People v. Flynn, Supreme Court of Utah, July 1, 1891, 26 Pac. Rep. 1114, it was held that | where a convict who escapes from the penitentiary and commits a grand larceny may be convicted and sentenced therefor before he has served out his first sentence. The court said: "It was early held in England that persons convicted of felony, and thereby attainted, might plead the same in bar to a subsequent prosecution for any other felony, whether committed before or after the first conviction, for the reason that by his first attaint his possessions were forfeited, his blood corrupted, and he became dead in law; therefore any further conviction or attaint would be fruitless. 4 Bl. Com. 536; 2 Hale P. C. 250; 1 Chit. Crim. Law, 464. This same doctrine was carried out in the case of Crenshaw v. State, 1 Mart. & Y. 122, wherein it is held that a conviction, judgment and execution upon one indictment for a felony not capital is a bar to all other indictments for felonies not capital committed pre-defendant was then undergoing under a former convious to such conviction. This doctrine however | has seldom been followed in the United States, and the above case, though not expressly overruled, seems to be the only adjudication in this country recognizing this doctrine. Bishop, in his Criminal Law, volume 1, section 898, says: 'It was a doc-prisonment. trine of the English law, at the time when this country was settled, that as a general rule, to which there were few exceptions, a person attainted for one felony could not be prosecuted criminally for another. But this doctrine, though recognized in one or two American cases, is not usually followed in this country. In England it was long ago abolished by an act of Parliament.' In Hawkins v. State, 1 Port. (Ala.) 475, the court holds that neither a conviction nor pardon for any particular offense can, in that State, operate as a bar or discharge of any viction, and that such a verdict would be no punishment whatever, unless the jury made it punishable with death. In this Territory there is no statute exempting a convict from punishment for an offense committed by him while serving out his term of im Our general penal laws include all persons within their scope. The criminal is protected by the law, and is made amenable to it, while in prison, for any term of imprisonment. The statute of limitations requires prosecution for all felonies, other than for murder, to be commenced within four years after the commission of the offense (Comp. Laws, 1888, § 4830), and if not so commenced, the prosecution is barred. It is true, an indictment may be found before the expiration of the statutory limit, and the prisoner may be arrested and tried thereon after the expiration of his term of imprisonment; but it is not difficult to discover that this practice, if inaugurated, would not only greatly delay the execution of public justice, but in many instances would prevent a speedy trial that is guaranteed to all accused persons. It would impair the necessary discipline required in public prisons, and in a measure become a shield and protection to the criminals therein confined." In Lee v. State, Supreme Court of Alabama, June 11, 1891, it was held that the right of a person to defend himself in his own house, without retreating, does not extend to his lands outside the curtilage, and one who retreats to such lands after being assaulted cannot justify a killing there, when fur-sition exposed to attack. Manifestly he has not ther retreat is practicable. The court said: "In behalf of the appellant it is urged that after he got upon the land, the right to the exclusive possession tion for him and that the peculiar inviolability attaching to a man's habitation does not extend to his other property. It would seem that the special privileges pertaining to a man in his own habitation are available for his protection only while he is within such space as is usually occupied for the purposes of the dwelling and the customary outbuildings. Pond v. People, 8 Mich. 150-181. The very circumstance of one being within the precincts of his dwelling or of his business-house, serves as a warning to deter an assailant from intruding therein. No such evidence of a disposition to avoid combat or to get out of the reach of danger is afforded by withdraws to his own land, and there halts in a pothe conduct of one who, when assaulted, merely availed himself of such shelter and protection as his house affords. He has not sought what is known of all men as an asylum of safety. His act is not calculated to give pause to one in pursuit. The common law would not say that he had gone to the wall, and we cannot say that he had fulfilled the duty of retreat. Nothing has been found in the books to indicate that a man, when upon his own land, is to be regarded as at bay, so as to be under in his house, or within the curtilage or space no duty to yield further to an assailant, unless he is usually occupied and used for the purposes of the house. When he is elsewhere upon his own land, the reasons which excuse him from withdrawing from the place which is to him as his castle and fortress do not apply. Jones v. State, 76 Ala. 8; State v. Patterson, 12 Am. Rep. 212, note. Not until he has reached this place of refuge can he claim the protection and privileges afforded thereby. When beyond its precincts, though upon his own land, he is under the duty to retreat when retreat with safety to himself is practicable." of which was in him, he was not bound to retreat further, though retreat was entirely practicable, but was entitled to stand his ground and protect himself, even to the taking of life, if he was without fault in bringing on the difficulty. We have not been cited to, nor have we found, any authority to support the proposition that the fact that one happens to be upon any part of his own land thereby secures to himself all the rights deducible from the principle which is illustrated by the maxim that every man's house is his castle. It is familiar doctrine that in order to entitle a person to the benefits of the plea of self-defense against the charge of homicide, he must have employed all means in his power, consistent with his safety, to avoid the danger and avert the necessity of taking life; and he must have retreated, if retreat was practicable. Carter v. State, 82 Ala. 13. In the old books of the law the phrases 'retreat to the wall' or 'retreat to the ditch' were much in vogue as figurative expressions of the rule, that in order to avoid the necessity of taking life, combat must be declined so long as the In Mulligan v. New York, etc., Ry. Co., New York avenues of escape are open. 1 Hale P. C. 479-483; Supreme Court, General Term, Second Department, 1 Russ. Crimes, 661. As one who has been forced May 11, 1891, 39 N. Y. St. Rep. 20, the plaintiff to the wall or to the ditch can withdraw no furwas a passenger on the defendant's road. He had ther, the law says he may there stand at bay, and paid his fare, and passed out upon the platform to resist assault, even to the taking of life. Upon like take the train. He paid his fare with a $5 bill and principles, a man's dwelling was regarded as the had received the change. The defendant's ticket limit of retreat for him. In the turbulence of early agent, who had received the bill, and while the times men made their habitations holds of defense, plaintiff was upon the platform, charged the plainand were often compelled to protect themselves tiff with passing upon him a counterfeit bill, and therein. One's dwelling was regarded as his directed and procured the arrest of the plaintiff place of refuge. Its sanctity in this regard was therefor. The charge failed, because the bill was fully recognized by the law. A man in his own good. Held, that defendant was liable. The court house was treated as 'at the wall,' and could not, said: "The ticket agent was acting directly within by another's assault, be put under any duty to flee the lines of his duty to the defendant. He was to therefrom. 1 Bish. Crim. Law, § 858; Kerr Hom., take good money only, and passengers were to give 180; Brinkley v. State, 89 Ala. 34. A killing in good money only. If a fraud was committed upon defense of one's dwelling may be excusable in the him by the passengers, the agent was acting for deeye of the law, when there would be no legal justi- fendant in his attempt to prevent and punish such fication for the taking of human life, in like circum- offenses. This liability of the defendant for his act stances, to prevent a trespass upon property not the is established in the case of Lynch v. Metropolitan dwelling-house. Carroll v. State, 23 Ala. 28; Simp-| El. R. Co., 90 N. Y. 77. It is no answer to the son v. State, 59 id. 1. This shows the solicitude of claim of the plaintiff to say that the agent had no the law to secure one's abode as a haven of protec-authority to cause the arrest. He attempted to per form a duty which he believed to be within the scope of his employment, and which was manifestly for the interest of the railroad company which employed him. The ticket agent's act was a willful one, under the case of Stewart v. Brooklyn, etc., R. Co., 90 N. Y. 588. The arrest was a trespass; it was made without a warrant, and the justification which would be furnished by proof of a criminal act failed before the magistrate. The arrest was therefore a wholly unjustifiable assault on the passenger. Daris v. American Society, 75 N. Y. 652; Burns v. Erben, 40 id. 465. The damages are not excessive. The arrest was publicly made in a crowd of people and upon a public charge of felony. The plaintiff was taken a mile through the streets of Brooklyn to the seventh precinct station-house. There was finally quite a crowd who followed the prisoner to the station-house. There his innocence was made plain and he was discharged. There could scarcely be a greater indignity put upon an innocent man. The jury were very moderate in their view of the damages." WHAT OUR EDITOR SEES IN EUROPE. [Special Correspondence of The Albany Law Journal.] THE Royal Courts of Justice in London are housed in an immense and magnificent building, which has a court and a superb hall. But its merits are all superficial. For the purposes of business the rooms are dark, ill-ventilated, cramped and inconvenient of access. To get from one side to another one has to walk around instead of across the court. The court-rooms are not much larger than the portion allotted to the bar in Albany or Troy. If Truth lies at the bottom of a well, it must inevitably be elucidated in London court-rooms, for they resemble nothing else so much as wells. The lack of public interest in judicial proceedings is evidenced by the small space allotted to spectators; they have nothing but a gallery, with a few seats on the floor, and the privilege of standing in the aisles. I spent an afternoon in Lord Coleridge's court, and was accorded a seat with the barristers, by the side of Sir Richard Webster, the attorney-general, and Mr. Lockwood, an eminent Q. C. Across the aisle was Sir Charles Russell. These eminent gentlemen were on opposite sides of the action of Coombe v. Barber. This was an action brought against one of the owners of the steamship Great Eastern (which laid the first Atlantic telegraph cable) by a member of a syndicate which had chartered that vessel to go to the New Orleans Exposition in 1885, as a hotel and show-ship, for fraud in concealing the unseaworthy condition of the vessel, by reason of which she was unable to sail. Mumm was interested in the adventure, and had sent down to Milford Haven some fifty thousand cases of champagne for shipment. There was a special or struck jury, composed of very intelligent men, one of whom asked several questions of a witness an unusual proceeding in America, probably because the counsel ask so many. They try causes here in a remarkably easy and liberal manner, and hearsay evidence is very common. Counsel exhibit great deference for the court and courtesy toward one another. I heard no speeches, but I could see that these eminent barristers are strong, sensible, unpretentious men, alert and ingenious, with an easy mastery of all the exigencies of nisi prius. Their voices are peculiarly pleasant, they do not "hem and haw," and their questions are clearly and elegantly phrased. They pronounce "engine" injin. Lord Coleridge presides with exquisite courtesy and blandness, and a smiling composure. He treats the jury with great consideration and intimates to them that unless they require more evidence on this or that point, he is inclined to believe that there is enough to satisfy "us." I heard but one objection to evidence in the whole afternoon, and no exception was taken to the disposition of it. Judging from this single instance, I think there is far less pettifogging here than in our courts, and I think counsel are less prone to waste time in petty details than with us. There seems to be no inclination to make points for a new trial. In Mr. Justice Grantham's court, at the same time, there was on trial an action of a lighter nature — an action by the managers of the Aquarium Theater for libel against a person who had accused them of exhibiting immoral and indecent shows, especially those of puppets or marionnettes. The defense was privilege, but it was not allowed, and the damages claimed were recovered. I very much regret that I was not two weeks earlier, in order to hear the famous baccarat trial. The general impression seems to be that the plaintiff was guilty, but that the Tranby-Croft people are a "bad lot," and that the Prince was the person who blabbed. Venturing to suggest that Sir Edward Clarke's fearless speech might injure his professional prospects, I was assured to the contrary, and those not in the government interest put it on the ground that he was merciful to his royal highness in not cross-examining him on this point which, by the way, seems to have been entirely irrelevant. It is noteworthy that all the other witnesses were asked if they had divulged the secret, and that all denied it. The women how ever universally believe that it was the Tranby-Croft women who let the cat out of the bag. Of course I visited the beautiful old Temple Church, the Mecca of every American lawyer, and experienced the customary emotions over the marble effigies of the crusaders on the pavement. Strongbow was one of the most famous of these. He was not a "Signer" in the American sense, but I believe he was one of the heavy-handed barons who made King John sign. I take it he was not a lawyer, for then they would have called him "Longboro." These gentlemen, unlike chancery lawyers, do not ever pray," but somewhere else I saw the prone figure of a crusader with his hands in attitude of prayer, like Lewis, as Bottom, in the interlude of Pyramus and Thisbe. This led me to the following reflections: 66 Aside from the din of the London ways His soul in the ancient chivalric days His harnessed legs are crossed at the knee, Of saints in the ether fair. The crash of arms has died on his ear, The good knight soundly is dreaming here But I wonder why, as I stand alone, And relax his stiffened fingers of stone The music in this famous church is in the charge of the celebrated Dr. Hopkins, and is among the very finest in Eng and. The service is attended by great crowds, mostly visitors, I fear. One thing in the court-room struck me with surprise the witnesses are required to stand; this seems a great hardship, especially on women, although doubtless they would stand longer in shopping, and waltz miles in a night without fatigue. I have forgotten if I ever knew the significance of that griffin or devil that stands in the Strand in front of the Royal Courts. Possibly it is a monument to the attorney-general's devil—who, by the way, at the present time seems a very pleasant and learned personage, although I was amused to hear him assure his principal that there could be only two cases in point cited against him on the pending trial. Unfertile country that can produce only two precedents on one side of any imaginable case! I was the recipient of marked courtesies from the barristers, especially from Mr. Stroud, who is the author of the best Concordance of Common Words and Phrases in legal use. Sir Richard lives in a charming but unpretentious house, near Campden Hill road, Kensington, with a spacious green of his own at the back, to which the infrequent London sun has apparently shown unusual partiality. Higher up the hill - it may interest Albanians to know lives George H. Boughton, R. A., in a beautiful house which he built for himself. Here I spent a delightful hour or two with him. I had not met him since he left Albany twenty-nine years ago. He is the same genial, witty, cultivated companion as when he was younger and less famous. I was telling him of a beautiful picture which I saw at the reception at the Royal Academy, of a little girl curiously scrutinizing a lady-bug which had lighted on her finger. He pretended to faint, and exclaimed that I must not say "bug" in England, especially in the presence of women, but must say "lady-bird." So I shall, until I "fly away home." Probably the forbidden word raises suspicions in the feminine mind of reflections upon their housekeeping. At the Academy, by the way, my pride was a little lowered by my presentation to the president at the entrance as "Mr. Hirving Browne." I was cheered by meeting in London my old partner, Martin I. Townsend, of Troy, with whom I was associated twenty-one years, and who at the age of eighty-one is travelling here, showing his present junior partner, his grandson, the sights. I asked him what he thought of the English judges. He replied that they reminded him of a certain old Rensselaer county judge, of whom it was once said, that when he did not pretend to be impartial he pettifogged one side or the other, but when he was impartial he pettifogged both sides. I thought I had heard all my honored senior's good stories, but this was new even to me. Of course, on arriving in England, I steered straight for Stratford. In the evening I took a boat, and the boatman's young daughter rowed me on the Avon till dark, which is here somewhere about ten o'clock. I would willingly have continued all night, to listen to her delicious voice and exquisite enunciation. I am enabled by the courtesy of the verger of the church to present to my Shakespeare-loving readers an authentic version of Mr. Ignatius Donnelly's soliloquy at the tomb of Shakespeare: Dismiss your apprehension, pseudo bard, Your foolish-colored bust upon the wall, And cheats no cultured Boston people now. Steal deer, hold horses, act your third-rate parts, I have expressed your history in a cypher, I don't know what you longer wish to lie for Get up and dust, or plunge into the river, Or walk the chancel with a ghostly squeak, You were an ignorant and evil liver, Who could not spell nor write nor knew much Greek. Though you enslaved the ages by your spell, Have quite reduced your dust to Bacon-powder. I was not obliged to journey so far as London to find the portraits of Mansfield and Romilly, for I found them in the dining hall of Christ Church College, Oxford; also Tenterden's, and that of the "G. O. M." Every traveller must be impressed by the detail of police regulation in England and in France, and the ample public notice given concerning it, especially in regard to public conveyance. One good result is cheap riding and no swindling on the part of public drivers. In Paris I took a drive of two hours and a half on the Bois, with a companion, for one dollar and sixty cents, including "drinkmoney" for the driver, which in New York would have cost us five dollars certainly. In London one can drive for two shillings and sixpence sterling an hour, and there is never any attempt to overcharge. These matters in New York are a disgrace to the city and the country, and they should be corrected by stringent regulation. They do these things better in Boston. It CARRIER-EJECTION OF PASSENGER DAMAGES. OREGON SUPREME COURT, JUNE 24, 1891. PEABODY V. OREGON RY. & NAV. Co.* It is the duty of a passenger, if he has not the required ticket or token evidencing his right to travel on that train, to pay his fare or quietly leave the train when requested, and resort to his appropriate remedy for the damages he has sustained; and if he attempts to retain his seat without paying his fare, and is expelled by the conductor, using no more force than is necessary, he can recover no damages for the injury incurred by such expulsion. When it is admitted that a railroad company is the owner of a railroad then being operated, a presumption arises that the same is operated by the company owning it, and the burden of proof is upon such company to show to the satisfaction of the jury that such is not the fact. But at another point these countries have an annoying and expensive regulation from which our country is free, and that is the stamp duty. One cannot draw money in England on a letter of credit without paying for a stamp on the receipt, and in Paris one cannot go to the opera without paying for a stamp on the ticket, and in the latter instance it is no compensation to reflect that one is helping to pay for those soldiers who stand at the entrance with muskets, ready to run in a noisy German. The stamp duty is a lawful nuisance, but when it comes to the "voluntary" fee system, words fail me. is the curse of all European countries. One cannot get waited on at any hotel without feeing the waiter, and even the imperative demands of nature are taxed. At the Oxford railway station I had to A pay two pence to get my daughter a drink of water, and on the ferry-boat from Liverpool to Birkenhead it is impossible for man or woman to get relief from the most annoying call of nature without actually "dropping a penny in the slot" to open the necessary door. This was the most outrageous and disgusting instance I have found, but I could narrate others approaching it. On the railway carriages the same result is compelled substantially, by deny ing these accommodations on the trains unless one goes first-class. I should think that the people would revolt against such absurd and indecent regulations. But one can forgive a great deal to the English, whose glory is part of our own, and who with ourselves are gradually furnishing to the world a universal language and the only permanent and equal institutions of liberty. It is a reflection that makes even the American's heart swell with pride, when standing under the dome of St. Paul's or at the door of Westminster Hall, that here is the seat of the government which rules a quarter of the human PPEAL from Circuit Court, Wasco county; J. H. W. W. Cotton and Snow & Gilbert, for appellant. LORD, J. This is an action in tort to recover damages for the wrongful acts of the defendant's agents or servants in ejecting the plaintiff from one of its cars. There are mainly two questions presented by this rec ord, but the controlling one arose substantially out of this state of facts: The plaintiff, who is a stockdealer, had shipped stock from Grant's station to Portland, and had received from the railroad company a shipping contract which entitled him, upon the performance of certain conditions, to a passage from Grant's to Portland and return. Going to the office of the company earlier than its business hours, he was unable to get the ticket stamped, and otherwise perform its conditions so as to ride upon it, without taking a later train, so he went on the train then ready and When the conductor came seated himself in the car. around for tickets he presented to him his shipping contract, but it not being stamped, etc., as required, the conductor refused to receive it, and informed him that he must pay his fare, which the plaintiff did, giv. ing the conductor a $20 gold piece, from which the amount of his fare from Portland to Grant's was to be taken. At this time, according to his testimony, he asked the conductor if he would be allowed to stop over at The Dalles and go to Grant's on the next train, to which the conductor replied that he could do so and that it would be all right. The conductor, not being able to make the necessary change for the fare, after an absence of about twenty minutes, during which time he was engaged in taking up tickets, etc., returned with the change and a drawback check, which he delivered to the plaintiff. Upon the back of the drawback check was a receipt for the fare, but the check itself had printed upon it in large and legible words: "Good for this day and train only." The plaintiff does not seem to have given any attention to the check, or what was written or printed upon it, but acting upon the assurance of the conductor that he would be permitted to stop over at The Dalles, he did so, and after remaining some hours he took another train for the completion of his journey to Grant's. A short time after he entered upon this train, the conductor called upon him for his ticket, and he presented the draw back check and the receipt, which the conductor refused to accept, stating that it did not entitle bim to ride upon that train, when he then explained to him the circumstances under which it was delivered to him by the other conductor, and claimed the right to continue his ride to Grant's station. The conductor *S. C., 26 Pac. Rep. 1053. |