that the carrier who sold the tickets was not responsible for an injury occurring at a point beyond its own line. This decision would be more satisfactory than it is if the authorities were uniformly to the same effect. Most of the authorities sustain the decision. But the following cases seem to militate strongly against it: Great Western Railway Co. v. Blake, 7 H. & N. 987; Thomas v. Railway Co., 19 W. R. 477; L. R., 5 Q. B. 226; 6 id. 266. See Van Buskirk v. Roberts, 31 N. Y. 661.

THE HUMOROUS IN PLEADING. Pleading at common law was a very solemn business. It cost the lawyer a great many years' labor to learn how to plead, and after he had learned he was by no means sure of it. The business of pleading was in some communities monopolized by a set of men who by nature and education were uncommonly skillful sophists, and not to put too fine a point on it, liars, for the system was a grand, ingenious, intricate and admirable labyrinth of lies. We may be sure there was nothing funny about it. Its devotees, who sat up nights to weave their webs, never allowed themselves the relaxation of a smile or a jest. If such a thing had been indulged in, the perpetrator would have been instantly sent to prison. The chancellor, albeit mercifully inclined, would have spoken to him about it in open court. The system was not to be sneezed at nor smiled at. It hung upon the body of the law like an incubus and brooded over it like a grim nightmare. But we have gotten rid of the system and are permitted to tell the truth if we will. We know one or two irreverent lawyers who have taken pains to spread their joy and thankfulness at this emancipation upon the record, in humorous strains of pleading. We will give an example in an answer actually interposed in an action for libel, where the defendant had printed of and concerning the plaintiff, who was a professional person, that he should take no further notice of him, whether he was "drunk as usual or sober as the exception." The answer justified as follows: "And this defendant further answers, that at the time of said publication the plaintiff was, and for many years previous thereto had been, a notorious hard drinker of many if not all of the known varieties of spirituous liquors, and had been frequently and for days together publicly overcome and intoxicated by reason of his said indulgence; but whether the said plaintiff indulged in the use of said liquors as a beverage, or for mechanical or medicinal purposes, this defendant really does not know and will not undertake definitely to state; but the plaintiff's said indulgence was what was intended by the words, drunk as usual or sober as the exception.'" Another instance was in an action for assault and battery against an infant, where the plaintiff charged the defendant with striking her on the head with a large stone; to which the defendant answered: "That at or about the time mentioned in the complaint, the defendant, who was lawfully and peaceably walking upon a public street and highway in the city of, was unlawfully and violently assaulted, attacked and pursued by a boy by the name of

and this defendant then and there in self-defense, as he lawfully might for the cause aforesaid, threw, projected and impelled, at and toward said ——, a clam-shell, of moderate and reasonable size, which

was providentially lying in and upon said highway, intending thereby to deter, intimidate, terrify and drive away said ; but the said clam-shell, by the influence of the circumambient atmosphere, or by the will of Providence, was diverted from the direction given to the same by the defendant, and glided and sailed away therefrom, after the manner of clamshells when rendered missile and projectile, and collided and caromed against and upon the head of the plaintiff, which happened, unfortunately for the said head, to be then in the vicinity of although at some distance from the said -, and slightly bruised, cut and abraded the said head, but did said head or said plaintiff no hurt or damage of any moment; that the said coincidence of the said clam-shell and said head was entirely unintentional on the part of the defendant, although doubtless in conformity with the decrees of fate and the laws of atmospheric pressure, and this defendant was and is sincerely sorry for the said occurrence, and to testify to his regret at the time procured the said plaintiff to be conveyed to her house in a carriage in the most tender and sympathetic manner, and summoned and produced a suitable and sufficient medical man to minister to the said hurt, and paid, compensated and satisfied said medical man and the proprietor of said carriage for their said services, which is the same occurrence referred to in the complaint; but this defendant does not conceive that he is legally liable for the said occurrence, and prays the court to discharge him accordingly. And this defendant further claims and insists that if any one was to blame for said occurrence, except said plaintiff, in so as aforesaid suffering, allowing and permitting her said head to intervene between said clam-shell and its intended mark, target and destination, it was the contracting board of said city of, in suffering and permitting the said public street and highway to be paved with clam-shells rather than with solid, immovable and non-volitant Russ, Belgium or cobble-stoue pavement."

Now we submit that the foregoing are much more sensible and explicit than the old forms in such cases made and provided, to say nothing of their superior interest and humor. If anybody has just such a case we recommend the foregoing as precedents.

CUMULATIVE SENTENCES ON INVETERATE MISDEMEANANTS.

The following paper by Mr. Sergeant Cox, of England, was read in the Repression of Crime section at the recent meeting of the Social Science Congress in Glasgow:

"With all deference to those who hold that criminals are 'society's failures,' and to whom, therefore, the community owes a debt to be paid, not by punishment, but by restraint with a view to reformation, I must still maintain that the primary object of criminal jurisprudence is to deter from the commission of crime through fear of the punishment that will follow it. Thus viewed, that object is twofold: First, to prevent those who are not yet criminals from becoming so; secondly, to deter those who have committed crime from repeating the offense.

"The reformation of the criminal is entirely a secondary object, and is properly the work of the priest and the schoolmaster. It is economy to make schools of our jails, and there to inculcate notions of religion and morality. But it is a benevolence superadded

upon a duty, and must be made subsidiary only to the primary purpose — - punishment.

"Assuming, then, the criminal law and its sentences to be designed for the terror of evil-doers, the question of cumulative punishments becomes very simple as a principle, although requiring some care in its application. No law could so define the gradations of criminality as to award to each its proper penalty. The law can but make a more or less rude classification of offenses, affix to each class certain kinds of punishment, and leave to the discretion of the judge the meting out of the quantity of that particular punishment according to his views of the character of the particular crime. Two crimes bearing the same title, and equal in magnitude in the eye of the law, might differ, as respects the guiltiness of the offender, to an extent far greater than the difference between a crime of one class and a crime of another class. Too large a latitude cannot, therefore, be permitted to the judge for the apportionment in the particular case of the degree of that punishment which the law prescribes for an offense of that kind.

"A first offense, unless it possesses some special features of aggravation, is usually and properly treated with leniency, in the expectation, which experience has not disappointed, that the pain suffered will deter the sufferer from hazarding a repetition of his offense. But this deterrent will obviously operate with vastly greater force if it is known to the criminal that a second offense will certainly entail a much more severe penalty. A few crimes are the consequences of unbridled passions, and over them the fear of consequences has little sway. But the vast majority of crimes are committed to gratify some self-indulgence; the impulse is for the most part momentary, and in many cases the fear of the pain that may follow the crime is likely to be weighed in the balance against the pleasure of the indulgence to be obtained by it. There is another class of crime over which punishment that is painful is likely to exercise much restraint. All crimes of fraud, or in the nature of fraud, the form that, with the spread of education, crime is assuming more and more, are from their nature deliberate crimes. They demand contrivance, skill, forethought, and much ingenuity for their accomplishment. The criminals are necessarily possessed of a considerable amount of intellectual capacity. These are crimes of calculation. The chances of success are weighed against the chances of detection and the unpleasantness of the penalty, and the balance is struck of probable gain or loss. But this balance is materially affected by knowledge of the amount of punishment involved in failure. Our laws, framed when society was very differently constructed, when education was less general, when the temptations were not so great and the facilities not so numerous, have treated crimes of fraud as if of lesser degree of criminality than larceny, and given to them, not only a milder name, but lesser punishments and more chances of escape. The penalty for crimes of this class should be imposed with reference to the question such a deliberate criminal always puts to himself, 'Is it worth the risk?'

thing can. It has been said that, in fact, cumulative sentences do not deter, because we find so many offenders coming back again to the jails in spite of them. But this is the same fallacy which has already been pressed into service against the contention that the object of punishment is to deter. We know all whom punishment has failed to frighten; we do not know those who have been prevented by fear of punishment from indulging their desires by criminal acts. So it is with cumulative punishments. We see those who disregard them. Is it not more than probable that of the vastly greater numbers who do not again lapse into crime a large proportion are prevented by a feeling that might be thus expressed: 'I know what it is to be a prisoner for two months; I will not risk enduring the like pain for six months.'

"Cumulative sentences for repeated offenses would, therefore, appear to be unexceptionable in principle, and there is no proof that, so far as their limited application has gone, they have failed in practice. But the application of the principle is not uniform, and it is wholly neglected in some offenses that especially call for it.

one.

"When the law attaches a penalty to an offense, it should in all cases specify the punishment for a second conviction for the same offense, with the general conclusion that for a third, or any subsequent conviction, the punishment will be increased according to an appointed scale, still leaving to the judge a discretion in its apportionment, in order to meet the infinite variety of circumstances that should determine the degrees of culpability, which differ as infinitely. It is not of infrequent occurrence that a person who has been several times convicted and subjected to penal servitude commits some offense of a very trivial nature, for which, had it been a first offense, he would have been subjected to imprisonment for a month. Although it is necessary to take his former convictions into account in the sentence, the proposition often advanced that he should invariably receive a punishment greater than either of his previous ones, does not commend itself to the judgment, for that would be equivalent to a still longer term of penal servitude than his former The complaint is not of the power to relax the rule as to cumulative sentences for repeated offenses -for that is indispensable to the administration of criminal justice - but to the capricious irregularity with which the principle is established by the law and adopted by those who administer it. In very few cases, indeed, are cumulative penalties prescribed by statute for second and subsequent convictions for the same offense. With felonies, a former conviction may be charged and proved, and in such case, however small the punishment attached to the offense, the judge may sentence the prisoner to a long term of penal servitude, and not to a shorter one, which is another grave error. The law is defective, also, in this - that it does not attach the cumulative punishment directly in the same section that specifies the punishment for the particular crime; but it appears only as a general provision in another place, and therefore is not brought so directly under the notice of the criminal class as it would if the provision were to follow as part of the penalty affixed to the particular crime. For instance, in the law that punishes larceny, after defining the offense, the punishment should be expressly stated as, for the first offense so much, for the second offense so much, for the third and all subsequent offenses a proportionate addition of so much more for each new

offense. A subsequent section might contain a general power to the judge to mitigate any of the sentences at his discretion. Cumulative punishment being thus imposed directly, the general rule would be to observe it, and the rule would be departed from in exceptional cases only. A further advantage would result in that the judge would be obliged to have, if not to give, good reasons for exceptional departure from the rule. But it is with offenses punishable by summary conviction that the law most requires amendment in this respect. Cumulative penalties are recognized for some such offenses, but only for a small portion of them. Even when the law is adopted it is imperfectly carried out. It is rarely extended beyond a second conviction. If the principle be a right one, it should be persistently applied. If a second offense is to be visited with double the punishment awarded to the first, there is no conceivable reason why a fifth or sixth offense should not be punished with five or six times the penalty inflicted for the first. On the contrary, if any distinction is to be made, if repetition of crime aggravates the guilt of the offender, his persistency, after repeated warnings, increases the wrong in more than the ratio of the repetitions. Instead of merely a penalty say of twenty shillings for a first offense, and of forty shillings (or whatever it may be) for a second or any subsequent offense-as is the usual provision, there should be a measured scale of increased penalty for subsequent offenses (as already suggested for indictable offenses), with, of course, the same discretion given to the magistrate to reduce or remit, as is suggested for the judges. The existence of such a scale would be a guide to justices in the duty (often most delicate) of determining the amount of punishment; for it would give them a measure by which they could at once relieve their own minds and justify themselves when subjected to the opposite fires of criticism from one side for their leniency, and from the other side for their severity. Such a scale would not be difficult of adjustment, and, as with indictable offenses, the cumulative penalties should be distinctly stated in the section of the statute that defines the offense, so that offenders may distinctly know what will be the consequences if they repeat their misbehavior.

-

"There are whole classes of offenses which the irrational and now unmeaning distinction made by our law between felonies and misdemeanors has continued to except from the category of crime, although in fact the moral guilt is much greater than that of many offenses called felonies, and therefore so treated. Such, for instance, is that now large category of offenses which may be properly described as "frauds." A man who deliberately and habitually loads a scale is morally and socially a far worse criminal than a boy who steals a loaf or picks a pocket. But owing to the legal distinction, now no longer necessary, between felony and misdemeanor, the fraud is treated with far less severity than the larceny, although that fraud was not the commission of one crime merely, but in fact an accumulation of many crimes. No greater service could be rendered to the community by a government desirous of practical reform, than the revision and reconstruction of the whole law of fraud, adapting it to the present state of society, where the diffusion of education has caused crimes of contrivance to be substituted for crimes of violence. But if it be deemed too large a work for one statute, no time should be lost in so far amending the present law as to introduce a

scale of cumulative penalties for offenses already punishable. Take, for instance, the offense of fraud by weights and measures. How inadequate is a penalty of £5 for an offense by which tenfold that sum has been pocketed by the offender? All offenses in the nature of fraud, by which profit is made, should be punished, at the least, by a pecuniary penalty that will exceed the profit, so as to make the fraud an unprofitable pursuit. Repetition of the offense should invariably involve a greatly increased penalty, regularly accumulating with every subsequent conviction. There are many other offenses, too numerous to be named, but familiar to all acquainted with the business of magistrates' courts (such as misbehavior of various kinds, disorderly drunkenness, wanton or malicious injuries to property, assaults, petty trespasses, and the like), which would certainly show a great and immediate diminution, if it were known that continuance in the wrong-doing would proportionately multiply the punishment to be endured.

"A special advantage of cumulative punishments is that they work in the most certain manner by a species of self-regulation. The criminal in fact apportions his own remedy to his own wrong. There must be some point at which he will reform himself, otherwise he will practically pass altogether into the custody of the law. If two months' imprisonment will not suffice for a remedy, three, or four, or six, or more, being successively applied by his own act, it is for him to determine when he has had enough. At the worst, if he has so little self-restraint that he cannot abstain from an hour's self-indulgence to avoid six months in a jail, the society to which he is a nuisance takes possession of him and compels him to good behavior by depriving him of the means for wrong-doing. If the penalty is pecuniary and he is imprisoned because he cannot pay, his imprisonment should only be remitted when he has worked out the amount. Thus his fate would be entirely in his own hands.

"The substance, then, of this paper resolves itself into the following propositions:

"1. The object of punishment is, first, to deter the offender from repeating the offense by fear of the consequences; secondly, to deter others from offending by the knowledge of the pain they will incur if they do so.

"2. For this purpose the law should affix to all offenses, below a certain high class of crime, a scale of penalties increasing at a fixed ratio with every repetition of the same offense.

3. The law should also impose some increase of sentence upon a conviction for any offense of the same nature, as, for instance-in larceny, for any crime in the nature of dishonesty; in assault, for any offense involving violence, and so forth. (This the law has already partially accomplished.)

"4. In all cases there should be vested in the court a large discretion for mitigation of punishment, and here I would suggest whether it would not be desirable to make some change in the present practice of sentences so as to require the judge to say to this effect: 'I now pronounce the sentence of the law, which for your offense is (naming the statutory penalty). But by virtue of the power given to me to mitigate that sentence, for the reasons I now state to you, I reduce your punishment for that offense to,' etc. Much benefit would accrue from such a repeated publication of the punishment attached by the law to offenses, and no small advantage would be secured by the judge be