filed "transcripts," and in the event of the judgment being collected by execution in any one of these counties, it may or may not be satisfied of record, at the option of the plaintiff. So that a judgment-creditor, while he may create liens upon all the real estate of the judgment-debtor, in any counties of the State, by simply filing a transcript of the judgment; yet, although such judgment may be satisfied immediately upon the execution issuing, the creditor, who has created all these liens, is not required in any way whatever to discharge the liens, even in the county in which the judgment was satisfied. The effect of this is, that, in a great many instances, liens exist where the judgment has been satisfied; and, at any time in the future, to find the judgment-creditor, or his attorney, and procure a satisfaction-piece, is a matter of no little trouble, yet this must be done in order to clear the title. As a remedy of this evil, the creditor ought to be required by law to discharge all liens he has created, or, in other words, to file a satisfaction-piece in all counties in which he has filed transcripts of the judgment, immediately upon the judgment being satisfied, and thereby clear the debtor's name from all seeming liens. This is the more necessary, as the judgment becomes a lien for ten years upon all property which he may acquire. An amendment of the Code, in this particular, would greatly facilitate the searching of titles and relieve the county clerk's dockets from a great many unsatisfied judgments.

H. A. S.

COMMISSION OF APPEALS DECISIONS. The following decisions were rendered by the Commission of Appeals on Friday, the 2d instant:

Judgments affirmed with costs - People ex rel. Cooke v. Commissioners of Highways of Greenburgh; Davis v. Groynne; Hoyt, Ex'r, of Van Gaasbeck v. Long Island R. R.; Mullen v. St. John; Black River Bank v. Markell; Graham v. Read; Brown v. McKee; Bartlett v. Drew; City of Brooklyn v. Breslin; Holbrook v. New Jersey Zinc Company; Allard v. Greasart; Crowell v. Howes; Buchanan v. Exchange Fire Ins. Co.; Freeman v. Lorillard; Stone v. Frost; Kelly v. Kelly; Best v. Staples; Jones v. Brooklyn Life Ins. Co.; Kingsland v. Chittenden; Bentis v. Arnory; Poulin v. Broadway and Seventh Avenue Railroad Company; Wehrum v. Kuhn; Haggerty v. Brooklyn City and Newtown Railroad Co.; Trustees of Union College v. Wheeler; Dudley v. Allanson, ex'r of Danforth; Snow v. Mercantile Mutual Ins. Co.; Heine v. Myer; Wilkin v. Barnard; Perry v. Lorillard Fire Ins. Co.; Harris v. Wade; Smith v. Holland; Wehle v. Butler; Whitman v. Seaman; Smith v. Dunning; Potts v. Norfolk and Petersburgh R. R. Co.; Pitts v. Hunt; Brown v. St. Nicholas Ins. Co.; Buffalo, N. Y. and Erie R. R. Co. v.Stigeler; Mailler v. Express Propeller Line. Judgment affirmed by default with costs - Hoag v. Foster.- -Judgment affirmed without costs to either party- Ames v. Duryea.— Judgments reversed and new trial granted, costs to abide event - Knowlton v. Congress and Empire Spring Co.; Mattison v. N. Y. Central R. R. Co.; Agate v. Lowenbien; James v. Schmidt; Buchanan v. Westchester County Mutual Ins. Co.; Mowers v. Fethers; Phillips v. Hebbard; Tallcott v. Arnold; Thompson v. Burhaus; Salisbury v. Brisbane; Cleamater v. Brill; Mitchell v. Reed; Losee v. Matthews; Bennett v. Buchan; Donohue v. Case; Whitman v. Seaman; Butler v. Evening Mail Association; Dorn v. Backer; Yates v. Lyon; Hill v.

Spencer; First National Bank of Toledo v. Shaw; Shuler v. Douglass.- Order of the General Term affirmed and judgment absolute ordered against the appellant with costs-Bostwick v. Goetzel; Titus v. President, etc., of Great Western Turnpike. Order General Term reversed and judgment upon report of referee affirmed with costs - East River National Bank v. Gove; Barnes v. Barrow.--Judgment affirmed with costs as to Ahearne, Spear, Wright and Hickman, and modified as to defendant Colbert, in accordance with opinion of Commissioner Dwight, before whom the form of the judgment is to be settled-Austin v. Ahearne.- Judgment reversed as far as appealed from and new trial granted, costs to abide event - Cuff v. Dorlan.- Order of General Term reversed and judgment of Special Term affirmed with costs - Glen & Hall Manufacturing Company v. Hall. Order reversed and judgment on report of referee affirmed, with costs-Ledoux v. Grand Trunk Railway Co.; Newman v. Beckwith.- Order affirmed and judgment absolute ordered against the appellant with costs-Turnbull v. Osborn. Judgment reversed and judgment ordered for the plaintiff upon the verdict with costs - Dinsmore v. Duncan.- Judgment of District Court and óf Common Pleas reversed with costs-Van Loon v. Lyons.- -Order affirmed with costs Hammock v. Pennock.- Order of General Term reversed and judgment at Circuit affirmed with costs-McCafferty v. Spuyten Duyvil, etc., R. R. Judgment reversed and motion denied with costs of appeal to General Term and to this Court, and $10 costs of motion-Munger v. Shannon. Judgment of General Term reversed and judgment on report of referee affirmed with costs Dorn v. Fox.Order affirmed and judgment absolute ordered against the defendant with costs - Becker v. Boon; Hoover v. Greenbaum. Proclamation made and Commission adjourned sine

Co.

die.

COURT OF APPEALS DECISIONS. The following decisions were rendered in the Court of Appeals on Tuesday, the 6th inst.

Judgment affirmed with costs-Alvin C. Bradley, Supervisor, etc., v. Ward and ors.; Victor Vincent v. Alfred B. Sands; John St. Peter v. Henry D. Denison; Joseph Tanssig et al. v. Julius Hart; Henry S. Bogen and ano. v. William W. Newcomb and ano.; Joseph P. Stedham et al. v. Watson Sanford; Theodore D. Hadley v. Joseph Barton; William Jennings and ano., etc., v. Alex. Whittimore, etc.; John E. Bliss v. George H. Gardner; John E. Bliss v. Charles K. Lawrence; The Salt Spring Nat. Bank of Syracuse v. Wm. H. Burton; Demming L. Rathbone, Trustee, etc., v. Peter Hooney, etc.; William Koenig v. Adam Steckel and ano.; Ellen Andrews v. Daniel W. Raymond; Ralph A. Bicknell v. The Lancaster City & County Ins. Co.; Jane K. Taylor v. John Hoey.Judgments reversed and new trial granted costs to abide event - Robert M. Masterton v. The Village of Mount Vernon; The Dutchess and Col. Railroad Company v. James Mabbett; Daniel Belton v Edward W. Baxter and ors.; Thankful P. Cook v. Chester C. McClure; Theodore M. Davis, receiver, etc., v. Ainsworth Beanter and ano.; John J. Weber v. The New York Central and Hudson River Railroad Company; John A. Foster v. John B. Newbrough. - Judgment affirmed with costs of both parties to be paid out of the estate- Wm. H. Leonard and ors., ex'rs, etc.,

v. Abby J. Bell and ors. — -Motion granted with $10 costs of one motion - Edwin L. Butterfield v. Wm. Rodde and one other case against same defendant.--Motion denied with $10 costs Eliza E. Ehle v. The Trustees of the Village of Canajoharie. · Order of General Term affirmed and judgment absolute on stipulation with costs-Thomas Martin and ano. v. Angus Smith and ano. Order of General Term so far as it sets aside the judgment entered upon the order of Rumsey, J., and directs a further trial of issues at Special Term reversed, and order of Special Term so far as it denies motion to vacate judgment entered by direction of Rumsey J., affirmed without costs of subsequent proceedings to either party against the other. John Parker v. James Laney and ano. Order affirmed with costs-George Carpenter v. Frederick Engelskircher. — - Order of General Term reversed and judgment on report of referee affirmed with costs-Uriah C. Whitlock v. James Hay. Appeal dismissed with costs J. Butler Wright et al., executors, etc., v. David L. Gardiner et al.

NOTES.

Courts of justice seldom unnecessarily interfere with the verdict of juries, because the damages awarded are excessive, but the Supreme Court of Kansas seems to have been guilty of such unjustifiable interference in the case of the Union Pacific Railroad Co. v. Hand, 7 Kansas, 393. The plaintiff brought action to recover for injuries alleged to have been occasioned by the negligence of the defendant, and the jury returned a verdict for the plaintiff for $5,000. This the court set aside as excessive, remarking that "the only permanent injury the plaintiff received to his person, was in the fourth metacarpopholangeal articulation of the right hand." We submit that $5,000 was little enough for such an injury.

Messrs. Baker, Voorhis & Co. will shortly issue an American edition of Brice's Treatise on the Doctrine of Ultra Vires, with notes of American cases by Mr. Ashbel Green; they have also in press a Treatise on Trespass by Mr. Thomas W. Waterman; and an American edition of DeColyar's Law of Guarantees and of Principal and Surety, with notes by Mr. James Appleton Morgan, a writer not unknown to the readers of the LAW JOURNAL.) -Messrs. Little, Brown & Co. are to republish Indermaur's Epitome of Leading American Law Cases, a little book which we noticed a little time ago, and one of the most useful of manuals. The same firm also announces new editions of Fearne on Remainders; Roscoe's Digest of the Law of Evidence; Burge's Commentaries on the Law of Suretyship; Perry's Trusts and Trustees.

The American Law Review for October speaks as follows of "The New York Supreme Court Reports." "In noticing the first volume of this series, we took occasion to express our gratitude to the editors, and our sense of the thoroughness and value of their work. A substantial recognition of the services of a man, who taking the New York Reports where they were a year or so ago, has thus elevated and cleansed them, should be accorded by the profession who reaps the benefit of his labor. "Blessed is he who, passing through the valley of Baca, maketh it a well." We find in these reports much to praise and little to condemn; but in comparison with their predecessors, they are much more praiseworthy. The well-meant but badly directed

efforts of the Bar Association of New York would seem to be entirely supplanted, as far at least as the reports of this court are concerned, by the good judgment, promptness and executive ability of the editors of this series, which, in the volumes before us, brings to the profession the cases down to June, 1874, and by that token probably contains later adjudications than are to be found in any other reports in the United States. We regret that we received these books at so late an hour as to be unable to review the reported cases, among which a casual examination shows many of interest and importance."

The following head-note to Ellington v. Ellington, 47 Miss., 329, we commend to Mr. Heard, as one of the curiosities of the Reporters:

IMPROVED THEORIES OF THE LAW.-In spite of the difficulty with which the judicial mind can ever emancipate itself from forms sanctioned by age and long experience, it is manifest that courts cannot stand still in the march of improvement; the idea that a parent's right of action for the defilement of his child rests only upon a supposed loss, by a master, of the services of a servant, originating, as it did, in a rude age, has gradually given away to more enlightened and refined theories.

LEGAL NEWS.

David Dudley Field, Esq., has returned from Europe. Hon. Joel Parker has founded a scholarship at Dartmouth College.

John Graham, Esq., the well-known criminal lawyer of New York city, is seriously ill.

The junior class in the Yale Law School numbers this year twenty-nine. This is said to be the largest class ever entered there.

Mr. R. A. Fisher, editor of Fisher's Common Law Digest and of two editions of "Grant on Banking," has been appointed to a county court judgeship.

Assistant United States District Attorney Goodlett, of New York city, has tendered his resignation, to take effect on October 1.

The death is announced of Hon. A. G. Miller, for thirty-five years judge of the United States Court for the District of Wisconsin.

The Maine legislature proposes this winter to renew the discussions upon capital punishment which constituted an important feature of its last session.

The celebrated judgment of Judge Routhier, that a priest could not be held responsible before the Civil Courts for what he said from a pulpit, has been reversed in the Court of Review, at Montreal.

The Hon. Jesse Gay, of Plattsburgh, died suddenly on the 2d inst. He had filled the offices of District Attorney and County Judge and Surrogate, and was in 1873 the Democratic candidate for Justice of the Supreme Court in the Fourth Department.

Hon. Thomas Wilson, of Winona, formerly Chief Justice of the Supreme Court of Minnesota, was brought before Judge Nelson, of the United States District Court, at St. Paul, on the 1st inst., on an order to show cause why he should not be held in contempt for instituting a suit against Mr. McIlrath, Receiver of the Southern Minnesota Railroad, without first obtaining the consent of the United States Court. The case was argued on one side by Judge Wilson, and on the other by George L. Otis, and taken under advisement.

All communications intended for publication in the LAW JOURNAL should be addressed to the editor, and the name of the writer should be given, though not necessarily for publication.

Communications on business matters should be addressed to the publishers.

The Albany Law
Law Journal.

ALBANY, OCTOBER 17, 1874.

WHEN A MAN'S HOUSE IS HIS CASTLE.

One would suppose that, considering the importance of the subject and the length of time that has elapsed since the doctrine was first enunciated. it would by this time be definitely settled in what respect and to what extent "a man's house is his castle." But there seems to be doubt and conflict thereon, at least among the text writers. Mr. Archbold holds to one view, while Mr. Bishop holds to another and Mr. Wharton to one a little different perhaps from either. The popular notion is that " a man's house is his castle for his defense" under all circumstances, and that he is at liberty to keep out all vexatious intruders and to take life if necessary in so doing. The limit of this article will be the question, when the doctrine that a man's house is his castle will justify the taking of human life.

The resolution of the judges in Seymane's Case, 5 Coke, 91, was "that the house of every one is to him as his castle and fortress, as well for his defense against injury and violence, as for his repose; and, although the life of a man is a thing precious and favored in law, so that although a man kills another in his defense, or kills one per infortun, without any intent, yet it is felony, and in such case he shall forfeit his goods and chattels, for the great regard which the law has to a man's life; but if thieves come to a man's house to rob him, or murder, and the owner or his servants kill any of the thieves in defense of himself and his house, it is not felony, and he shall lose nothing and therewith agree. 3 E. 3, Coron, 303 and 305, and 26 Ass. pl. 23. So it was held in H., 7, 39. Every one may assemble his friends and neighbors to defend his house against violence; and the reason of all this is, because domus sua cuique est tutissimum refugium."

this, who, "being in possession of a house, A. endeavored to enter, and shot an arrow at those who have entered, and killed one of the company, which was ruled manslaughter, and not se defendendo, because there was no danger to his life from those without." 1 Hale's P. C. 485-6.

Hawkins says: "Neither can a man justify the killing of another in defense of his house or goods, or even of his person, from a bare private trespass, and, therefore, he that kills another who, claiming a title to his house, attempts to enter it by force, and shoots at it, or that breaks open his windows in order to arrest him, or that persists in breaking his hedges, after he was forbidden, is guilty of manslaughter." Hawkins, 83.

In Cook's Case, Cro. Car. 537, an officer with a capias ad satisfaciendum, went with other officers, for the purpose of executing the same, to the dwellinghouse of the respondent, and, finding him within, demanded of him to open the door and suffer them to enter. He commanded them to depart, telling them they should not enter. Thereupon they broke a window, and afterward went to the door of the house and offered to force it open, and broke one of the hinges; whereupon Cook discharged his musket at the deceased and hit him, and he died of the wound. After argument at the bar, all the justices, seriatim, delivered their opinions, that it was not murder but manslaughter; the bailiff was slain in doing an unlawful act in seeking to break open the house to execute process for a subject, and every one is to defend his own house. Yet they all held it was manslaughter; for he might have resisted him without killing him; and when he saw and shot voluntarily at him, it was manslaughter.

A. can

of B. B. endeavors to enter upon him. neither justify the assault or the beating of B., for B. had the right of entry into the house; but if A. be in possession of a house, and B., as a trespasser, enter without title upon him, A. may not beat him, but may quietly lay hands upon him to put him out, and if B. resists and assaults A., then A. may justify the beating of him as of his own assault. But if A. kills him in defense of his house, it is neither justifiable nor within the privilege se defendendo, for he entered as a trespasser, and, therefore, it is, at least, common manslaughter," and he cites Harcourt's case in support of

entrance.

quences,

warning."

*

Mr. Bishop says, 1 Criminal Law (5th ed.), § 858: "Moreover the general doctrine, as to the defense of property, does not prevail as respects the defense of what is sometimes termed the castle. In the early times our forefathers were compelled to protect themselves in their habitations, by converting them into holds of defense; and thus the dwelling-house was called a castle. And while a man keeps the doors of his house closed, no other man has the right to break in under any circumstances, except in particular cases

where it becomes lawful for the purpose of making an arrest of the occupant, or the like; cases which it is not within our present line to consider. And from this doctrine springs another; namely, that the persons within the house may exercise all needful force to keep the aggressor out, even to the taking of his life." In the note thereto the author adds, after citing several cases: "While the doctrine of the text is clear on principles, it is not so distinctly and uniformly sustained by the authorities as we might wish." Again, after treating of the defense of the person and of property, he says, Vol. 2, § 707: "The defense of the dwelling-house stands on a different ground. And though the question has at some periods of our law been in part under a cloud, it may now be deemed to be reasonably clear, that, to prevent an unlawful entrance into a dwelling-house, the occupant may make defense to the taking of life, without being liable even for manslaughter. Of course, a defense may be of a sort which will constitute manslaughter, or even murder."

The question was quite fully discussed in Pond v. People, 8 Mich. 150. The deceased, with others, had expressed an intention to do the prisoner personal violence, had struck him and kicked him; had the same night, after his violence, gone to his house and demanded him, but not finding him, went away, had met him again the next day and threatened him and treated him with violence; had gone again that night to prisoner's house and endeavored to force an entrance, and then went to a net-house, thirty-six feet from the main house, where the prisoner's servants were sleeping, laid violent hands on the servants, and began tearing down the house. The prisoner, from the door of his house, thereupon, after warning, fired and killed the deceased. The court held that the nethouse was a part of Pond's dwelling-house, and granted a new trial, saying in the conclusion of the opinion: We think there was error in requiring the actual, instead of apparent and reasonably founded causes of apprehension of injury, in holding that the protection of the net-house could not be male by using a dangerous weapon; and that the conduct of the assailing party was not felonious; and also in using language calculated to mislead the jury upon the means and extent of resistance justifiable in resisting a felony." During the discussion, the court used this language as to the right of self-defense: "The danger to be resisted must be to life, or of serious bodily harm of a permanent character, and it must be unavoidably by other means. Of course, we refer to means within the power of the slayer, so far as he is able to judge from the circumstances as they appear to him at the time. A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life. But here, as in the other cases, he must not take life if he can otherwise

arrest or repel the assailant. Where the assault or breaking is felonious, the homicide becomes justifiable and not merely excusable."

In Patten v. People, 18 Mich. 314, the defendant was convicted of manslaughter. The deceased and a number of others went to defendant's house to "horn him, he having been newly married. They had guns, tin horns, etc., for the purpose of making a noise. While they were making the noise in the yard near the house, the prisoner came out and he ordered them away and they left. The next night they returned for the same purpose, and while they were blowing horns, shooting guns, etc., the prisoner came out and struck the deceased with an axe. There was no evidence of an attack upon the house or any of its inmates, further than that while the door was open wads from some of the guns were fired into the house; the evidence also tended to show that the prisoner understood the object of the rioters, and that it was not personal injury to himself or family, but there was also evidence that before the prisoner stepped out there were cries "to bring him (or fetch him) out."

The court held, that "considering the case first with reference only to the facts existing prior to the time when the defendant went out with the axe," there was nothing to justify the assault with the axe, "until some actual violence had been done or attempted in this case against either the house or its inmates, the necessity which alone could excuse taking the life of any of the assailants, had not yet occurred and might never occur." But the court further held, that if owing to the feeble health and peculiar infirmities of the prisoner's mother, who was in the house with him, the fear and excitement occasioned by the riot produced upon her alarming effects, from which her speedy death might reasonably have been apprehended, and if the rioters were informed of her condition, and the effect produced by their conduct, or if every reasonable effort had been made to inform them thereof, then the danger to the mother would excuse the conduct of the prisoner to the same extent as if the danger to her life had resulted from an actual attack upon her person, or the like danger to the defendant from an attack upon him.

In Greschia v. People, 53 Ill. 295, the deceased had been in the prisoner's room for his clothes and as he was departing the prisoner made some offensive remark, whereupon he suddenly turned and in an angry mood went toward the prisoner who had told him to come on ; as the deceased advanced to the door of the room, and was in the act of entering it, it being open, the prisoner struck him with a rolling-pin inflicting a fatal wound. The court held that the prisoner was in no respect excused.

In Carroll v. State, 23 Ala. 28, the court, after citing and commenting on some of the older authorities, said: "Our conclusion is that a mere civil trespass upon a man's house, unaccompanied with such force as to make it a breach of the peace, would not