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having been committed in the fort, but at the place where the person dies; and that in such a case the courts of the latter place have jurisdiction. It is undoubtedly true that the courts of the latter place do sometimes have jurisdiction. But we are satisfied that when this is so, it is not because the crime is to be regarded as having been committed there, but because some rule of law, statutory or otherwise, expressly confers such jurisdiction. The modern and more rational view is that the crime is committed where the unlawful act is done, and that the subsequent death, while it may be sufficient to confer jurisdiction, cannot change the locality of the crime. * * * How then can a State court take jurisdiction? Clearly it cannot, unless when a mortal blow or wound is inflicted in a fort, and the person struck or wounded dies out of the fort, the crime is regarded as committed where the person dies; and this, as already stated, is a doctrine which we cannot sustain. It is condemned by the weight of modern authority, English as well as American, and is opposed to reason. The authorities bearing on the question will be found in Bishop's Criminal Law, vol. 1, §§ 69, 154; Bishop's Criminal Procedure, ch. 4; Commonwealth v. Macloon, 101 Mass. 1, and in the Report of Guiteau's Trial for the Murder of President Garfield." See United States v. Guiteau, 1 Mackey, 498; S. C., 47 Am. Rep. 247.

In Findlay v. Thorn, New York City Court, January 5, 1885, 27 Daily Reg. 33, it was held that an answer may not be rejected because the verification is sworn to before a female notary. McAdam, C. J., observed: "The reply interposed to the counterclaim contained in the defendant's answer was returned, because the certificate to the jurat is signed Jennie Turner, notary public.' The complaint and answer were verified, and unless the reply contains a legal verification the defendants had the right to return it as an unverified pleading. The defendants place their objection upon the ground that Miss Turner, being a female, is ineligible to public office, and cannot therefore legally perform the functions of a notary. Miss Turner was appointed by the governor, and the appointment was confirmed by the Senate. She has filed her official oath, and has received her commission, and is in possession of the office exercising its functions, and her right to the office cannot be questioned except in a direct proceeding brought by the Attorney-General in the name of the People, in which the notary may defend her right to the office. It cannot be determined in the collateral manner in which the defendants present their objection. When the appointing power can lawfully be exercised upon a particular office, the appointee, after qualifying and entering upon the office, becomes an officer de facto, if not de jure, his acts are legal so far as the public is concerned, and his capacity or qualification for the office cannot be inquired into collaterally. People v. White, 24 Wend. 520; People v. Lambert, 76 N. Y. 220.

In Queen v. Dee, Irish Ex. Div., Crown Cases Reserved, Dec. 1, 1884 (Ir. L. T. Rep.), the prosecutrix, a married woman, in the absence of her husband, lay down upon a bed when it was dark. The prisoner came into the room, and lay upon her. Thinking that he was her husband, she said to him: "You came in very soon," to which he made no reply. He then had sexual connexion with her, which she did not resist, until during the act, she discovered that he was not her husband. On a case stated, held, that the prisoner was guilty of rape. R. v. Barrow, L. R., 1 C. C. R. 156, overruled; R. v. Flattery, 2 Q. B. Div. 410, approved. The judges delivered elaborate opinions, reviewing all the authorities, i. e., the British authorities. The judges do not seem to have agreed as to what constitutes rape, for May, C. J., said that connexion with a woman while unconscious does not constitute rape, but O'Brien, J., said just the reverse, and that undoubtedly is the law. 2 Bish. Cr. Law, § 1121. On principle, Pales, C. B., observed: "Consent is the act of man, in his character of a rational and intelligent being, not in that of an animal. It must therefore proceed from the will-not when such will is acting without the control of reason, as idiocy or drunkenness, but from the will sufficiently enlightened by the intellect to make such consent the act of a reasoning being. It is an instance of the application of a principle of widespread application, which in criminal law appears under the maxim Actus non facit reum nisi mens sit rea, which is acted on in cases of deeds and wills, to the execution of which it is of the essence that the mind accompany the act, in cases of contracts passing property where intention governs (Merry v. Green, 7 M. & W. 630), and in innumerable other cases. I feel that I owe an apology to my hearers in insisting upon so elementary a proposition, but nothing is in my opinion too elementary to encounter a doctrine so abhorrent to our best feelings, and so discreditable to any jurisprudence in which it should succeed in obtaining a place, as that which more than once was laid down in England, that a consent produced in an idiot by mere animal instinct, is sufficient to deprive an act of the character of rape. Queen v. Fletcher, 1859, Bell C.C.33; Queen v. Fletcher, 1866, L. R., 1 C. C. R. 40. I think it follows that (excluding cases in which an outward action apparently, but not in fact, accompanied by mind, is acted upon by another), any act done by one under the bona fide belief that it is another act different in its essence, is not in law his act and that is the present case. The person by whom the act was to be performed was part of its essence. The consent of the intellect, the only consent known to the law, was to the act of the husband only (and of this the prisoner was aware). As well put by Mr. Curtis, what the woman consented to was not adultery, but marital intercourse. The act was not a crime in law. It would not subject her to a divorce. Were adultery criminally punishable by our law, she would not be guilty. It is hardly necessary to point out (but to avoid any misapprehension I desire to

crown said she did not consent to adultery; this was the act the accused committed. If the accused was not guilty of the crime of rape, which involves an assault on a woman's chastity and virtue, he was guilty of an assault, having done violence to her person by even touching her, without or against her consent; for before he can be held guilty of an assault, this must be assumed. But at the same time, it is said he is not guilty of any assault on her virtue because she consented to the act of sexual intercourse. In my opinion, this is not law. If not guilty of the crime of rape, he was not guilty of assault. The accused was guilty of the felonious assault on this woman, just as much as a man, coming behind another and stunning him with blow, before he was aware even of his presence, would be guilty of an assault causing actual bodily harm." Bishop lays it down that the act of the prisoner in question is not rape, citing many authorities. 2 Cr. Law, § 1122. Wharton lays down the contrary. 1 Cr. Law, § 561. A recent holding like that in Queen v. Flattery, much relied on in the principal case, is in Pomeroy v. State, 94 Ind. 96; S. C., 48 Am. Rep. 146. The question is very much in doubt upon the authorities, but we think the Irish court is right in principle. The woman's consent to intercourse with her husband is not consent to intercourse with another man, and it is barbarous and illogical to hold that it is.

do so) that what took place was not a consent in
fact, voidable by reason of his fraud, but something
which never was a consent ad hoc." Lawson, J.,
said:
"The question is, what must be the nature
of the consent? In my opinion it must be consent
to the prisoner having connexion with her, and if
either of these elements be wanting, it is not con-
sent. Thus in Flattery's case, where she consented
to the performance of a surgical operation, and un-
der pretence of performing it the prisoner had con-
nexion with her, it was held clearly that she never
consented to the sexual connexion; the case was
one of rape. So if she consents to her husband hav-
ing connexion with her, and the act is done, not by
her husband but by another man personating the
husband, there is no consent to the prisoner having
connexion with her, and it is rape. The general
principles of the law as to the consent apply to
this case.
To constitute consent there must be the
free exercise of the will of a conscious agent, and
therefore if the connexion be with an idiot incapa-
ble of giving consent, or with a woman in a state of
unconsciousness, it is rape. In like manner, if the
consent be extorted by duress or threats of violence,
it is not consent. These are the true principles of
law which govern the case, and which I have|
always heard laid down by the judges in Ireland;
and the cases which contravene this principle I
should not be disposed to follow, and they have
never been followed in this country." O'Brien, J.,
said: "The crime is the invasion of a woman's
person without her consent, and I see no real dif-
ference between the act of consent and the act be-
ing against her will, which is the language of the
indictment, though the distinction is taken by Lord
Campbell, or between the negation of consent and
positive dissent. Whether the act of consent is
procured by the result of overpowering force, or of
fear, or of incapacity, or of natural condition, or of
deception, it is still want of consent, and the con-
sent must be, not consent to the act, but to the actriage null and void ab initio.
of the particular person, not in the abstract but the
concrete, for otherwise the consent in principle
would be just like the act of handing money in the
dark to a person which was received by another,
who would nevertheless in that case be guilty of a
crime." Murphy, J., said: "Where the will does
not accompany the act, there is no consent. Every
invasion of a man's person or property without con-
sent or will, is against consent and will. A writ-
ten document is placed before a man, which he
reads and understands, and by signing which he
knows that some right or privilege is passing to
another he consents to sign it. Then turning
aside for a moment, another document is substitu-
ted for that which he had read-believing it to be
the same, he signs it. Is he bound by the contents
of that which he has signed? Has he consented to
it? He certainly has not. This woman consented
to intercourse with her husband. The accused in-
duces her to believe he is her husband, and so ob-
tains possession of her person. She never consented
to this violation of her virtue-counsel for the

THE NEW DIVORCE LAW IN FRANCE.

D

URING the dark and the middle ages, and until the great social and political cataclysm of 1789, France, like all other Catholic countries, had no laws bearing upon divorce. Marriage not being regarded as a civil contract, could not be dissolved by any temporal power. The pope alone had the power, not to decree a divorce, but to declare a mar

This, with other beliefs and convictions consecrated by religion and time, was swept away by the revolutionary torrent of 1789.

Marriage, instead of a religious sacrament, was declared to be a civil contract; and in 1792 the first divorce law was passed. As might be supposed in that era of lax morality, every facility was offered by the law for severing the marriage tie. In addition to all the more or less grave causes recognized by modern jurisprudence in the United States, divorces were granted for incompatibility of character, and by mutual consent. As the formalities necessary to obtain a divorce by mutual consent were of the extremest simplicity, and as in the case of incompatibility of character, a mere allegation by one of the parties was sufficient proof upon which to base a decree, divorces became excessively numerous, and the law was the occasion of scandalous abuses, and a quasi-authorized immorality.

When Napoleon had succeeded in consolidating his power upon an apparently solid basis, and when the revolutionary elements had been again relegated

to the Faubourgs, and society had become reorganized, the necessity for a new divorce law became universally felt.

On the 31st of March, 1803, a law on divorce was promulgated, on the whole moderate and just, the determinating causes of which were maintained in the case of a limited divorce (separation de corps et de biens), when in 1816 the divorce law itself was abrogated, and which, with some modifications, has been re-enacted by the law of the 19th of July, 1884.

By the law of 1803 divorce was granted for the following causes:

1st. Adultery of the wife.

2d. Adultery of the husband, when he introduced a concubine in the conjugal domicil.

3d. Condemnation of either party of an infamous crime.

which may be re-established as in the law of 1803; and the facultative portion of the last clause, giving judges the option whether or not to convert the decree for a separation de corps et de biens into one of absolute divorce. This will probably be made obligatory.

The re-establishment of clause 2 as in the text of the old law is not so absolutely prejudicial to the wife as would at first appear. For while under that law clause 2 gave her no right to demand a divorce for the simple infidelity of her husband, yet it could be obtained under clause 3 for “grievous injury." Although the granting this was left to the discretion of the judge, divorce was usually accorded on the ground that marital infidelity on the part of the husband was a "grievous injury " to the wife.

Indeed this 3d clause had a general and saving 4th. Excesses, violence and extreme cruelty and effect, for it was applied in cases where clause 4 was injury.

5th. Mutual consent.

The last ground for a divorce was a concession to the supporters of the law of 1792, and the more radical element of the populace, but it was so hampered and restricted by the procedure to be followed, that in practice it was very difficult to accomplish.

The re-establishment of the monarchy necessarily led to the abrogation of the law upon divorce, and for more than sixty years no serious or lasting effort was made to revive it. Six years ago, however, M. Naquet began his active and energetic propaganda, and in spite of rebuffs, ridicule and the most strenuous opposition, persistently carried out his purpose, and on the 19th of July, 1884, the new divorce law was voted.

It is little more than the re-enactment of the divorce law of 1803, but there are two salient features in the new law, one of which evinces the higher esteem and respect accorded to women in France in the present age, and the tendency to constrain men to the same marital obligations and duties as women. The second ground upon which divorce may be obtained is simply for the adultery of the husband, the restriction when he keeps a concubine in the conjugal domicil being abrogated.

The clause authorizing divorce by mutual consent is also abolished, and in its stead the following new clause is inserted:

"When the divorce a mensa et a thoro (separation de corps et de biens) shall have existed for three years, the judgment decreeing such separation may be converted into a judgment for an absolute divorce."

not effectively, but morally true; as although a wife could not obtain a divorce for a mere misdemeanor, yet if the misdemeanor evinced moral degradation or turpitude it would be considered a grievous injury, and a divorce granted on this ground.

The facility with which a separation de corps et de biens, or a limited divorce, may be converted, under the new clause in the recent divorce law, into an absolute divorce on a mere ex parte motion, is not the radical change it would appear to Americans, for a limited divorce in France is not a palliative for an absolute divorce, as in New York and elsewhere, granted for causes insufficient to sustain an application for an absolute divorce, but is decreed for identically the same causes. In the law of 1803 it was made co-existent with an absolute divorce, as a concession to the conservative and religious element of the people who regarded marriage as an indissoluble sacrament.

The procedure under the new divorce law is pur, posely complicated and slow; the object being that parties to a divorce suit shall have sufficient leisure and opportunity to reflect upon the gravity of the steps they propose to take and the serious nature of the bond they wish to dissolve. More than this, the judicial authority, which in France is much more extended than with us, and has a quasi paternal or patriarchal character, twice intervenes, and the judge in camera, having cited the parties to appear in person before him, admonishes and endeavors to reconcile them.

The libel or complaint of the plaintiff, which in France is a simple statement, devoid of the technicalities inherent to such papers with us, is presented by him in person to the judge, and explained and discussed. Should the statement appear sufficiently well founded to warrant a divorce suit, and should the plaintiff remain obdurate to the perfunctory administration of the judge, the latter issues a citation to the defendant, as well as the plaintiff, to appear before him in camera. Here he uses his enThe clauses most condemned are the second, deavors to reconcile the parties, going through the

These are the only changes made by the new law. It is open to objections in many respects, and it is questionable whether all of its provisions will be sustained. It is not the law projected by Naquet or voted by the Chambre, but as modified, curtailed and restored by the Conservative Senate.

patriarchal comedy for the second time. Should it prove unsuccessful, and the plaintiff persist in his purpose, which he very naturally does (not having begun his suit for the mere pleasure of being lectured by the judge), his statement, and the papers in support thereof, are transmitted by the judge to the attorney-general (or district attorney [procureur general]) (who is always a party to a divorce suit) and the court, the presiding judge of which, after hearing the attorney-general, either accords or refuses to plaintiff the permission to issue a summons. Here then commences the suit proper, the procedure of which may be divided into two phases, the private and the public.

The parties, as previously appear before a judge in camera, but this time accompanied by their respective counsel, who state the grounds upon which their clients demand or oppose a divorce, mentioning the proofs they possess and the witnesses they intend to subpœna. Discussions between the parties naturally ensue, and objections are made to the proofs offered and the witnesses to be cited; all of which, with such further observations as the parties may choose to make, are duly recorded by the clerk and signed by the parties.

This ends the proceedings in camera, which still partake of the patriarchal character, so inherent in French jurisprudence, which goes upon the assumption that the people at large are children, and ought to be treated as such.

The procès-verbal or statement thus signed is submitted to the court, which decides whether or not the petition for a divorce is admissible. Of course in the latter case the suit is dismissed, and the only remedy for the plaintiff is to appeal against the interlocutory judgment.

If however the libel or petition is admissible, the public and regular procedure commences.

Here the peculiar features incident to French divorce suits end, and the subsequent procedure is necessarily similar in its general characteristics to that of divorce suits in our own States.

The judgment however when rendered by the 'court does not per se dissolve the marriage. The law requires that the dissolution should be publicly pronounced by the civil officer (usually the mayor) of the domicil of the plaintiff.

The consequences resulting from a divorce are necessarily, on account of the subordinate position of the wife during marriage and the vested rights which children have in their parents' property, more serious and extensive than in the United States or England.

The marital power and authority accorded by the Code to the husband is destroyed, and the woman resumes her position and rights as a feme sole. Both parties have the privilege of remarrying, with the exception that the party convicted of adultery cannot marry his or her accomplice, and the restriction that a woman cannot marry until ten months shall have elapsed since the judgment of divorce.

Should the children issued of the marriage be minors, they are intrusted to the care of the party

in whose favor the divorce has been pronounced, unless a specific decree of the court order otherwise (C. C. 302).

The right of the children to maintenance, education, and the share accorded them in the estate of their father and mother by the Code, subsist and are unchanged by a divorce pronounced between their parents. As to the parties themselves, the property relations existing between them may be modified. Articles 299 and 300, C. C., deprive the party against whom the divorce has been pronounced of all privileges and advantages (from a pecuniary point of view) which he or she had acquired by marriage settlements, or gifts made during the marriage, whereas the party in whose favor the divorce was pronounced is entitled to all the benefits and advantages acquired by marriage settlements or otherwise, even though the stipulation existed that such benefits and advantages should be reciprocal. N. MORTON GRINNELL.

PARIS, Dec. 4, 1884.

CHATTEL MORTGAGE—“ SHALL DEEM HIMSELF UNSAFE" CONVERSION.

NEW YORK SUPREME COURT, GENERAL TERM, FIFTH DEPARTMENT, OCTOBER, 1884.

ALLEN V. VOSE.

April 18, 1876, plaintiff executed and delivered to defendant a chattel mortgage upon, among other things, a mare. The mortgage, which was to run until December 1, 1876, contained the usual clause, "that in case the * * ** shall at any time deem himself unsafe it shall be lawful for him to take possession," etc. On July 18, 1876, without the consent or authority of the mortgagor, defendant in good faith took possession of said mare, and sold her at public auction. In an action for conversion, held, that defendant was not liable; that said clause vested in him an absolute discretion, the exercise of which did not depend upon the fact whether or not he had reasonable ground for deeming himself insecure.

A

PPEAL from a judgment entered upon the report of a referee in favor of plaintiff. The opinion states the case.

D. M. Darrin, for appellant.

J. W. & H. J. Dininny, for respondent.

HAIGHT, J. This action was brought to recover damages for an alleged conversion of a mare, and for damages resulting to her colt by reason of taking her from it before it was old enough to wean. The defense was justification under a chattel mortgage.

On the 1st day of April, 1875, the plaintiff entered into a contract in writing with the defendant, in and by the terms of which he leased the defendant's farm, in the town of Thurston, Steuben county, for the term of one year, to work upon shares, and in the fall of the year to sow and put in a quantity of winter wheat and rye, and to harvest the same the next summer when the crops should mature. The plaintiff, pursuant to the lease, entered into possession of the farm, and worked the same during the term embraced in the lease. On the 18th day of April, 1876, the parties had an accounting and settlement of their transactions under the lease, whereby it was found and agreed that the plaintiff was indebted to the defendant in the sum of $100, to secure which the plaintiff

executed and delivered to the defendant a chattel mortgage upon all his interest in the winter wheat and rye growing upon the farm, and also in one sorrel mare, conditioned that the plaintiff would pay the defendant the sum of $100 and the interest thereon on the 1st day of December, 1876. The mortgage contained the following clause: "That in case the said Arlon M. Vose shall at any time deem himself unsafe it shall be lawful for him to take possession of the said property, and to sell the same at public or private sale previous to the time above mentioned for the payment of said debt, applying the proceeds upon the mortgage after deducting all expenses of sale and keeping said property."

On the 17th day of July, 1876, the parties entered into an agreement, in and by the terms of which the plaintiff sold to the defendant his share and interest in the wheat then standing upon the defendant's farm for the sum of $10, and that amount was indorsed upon the mortgage. On the 18th day of July, 1876, the defendant caused the sorrel mare mentioned in the mortgage to be taken from the possession of the plaintiff under and by virtue of the mortgage without his authority or consent, and caused the same to be advertised and sold at public auction. It was for this taking that the plaintiff alleges conversion.

The referee has held and decided that under the clause contained in the mortgage, "that in case the said Arlon M. Vose shall deem himself unsafe it shall be lawful for him to take possession," etc., the defendant must prove and establish to the satisfaction of the jury or referee that he deems himself unsafe before he is justified in taking possession of the property, and whether he is actually insecure and unsafe does not rest in the mere whim, caprice, or arbitrary will of the mortgagee, but becomes a question of fact, to be heard and determined like other important questions of fact, and governed by the same rules; that in this case the evidence did not justify the defendant in deeming himself unsafe, and that consequently he had no right to take possession of the mare at the time he did. This question presents the important question in the case for review.

The appellant relies upon Huggans v. Fryer, 1 Lans. 276; Roy v. Goings, 96 Ill. 361; S. C., 36 Am. Rep. 151; Farrell v. Hildreth, 38 Barb. 178; Hall v. Sampson, 35 N. Y. 274.

In the case of Huggans v. Fryer the mortgage was upon a yoke of oxen, and contained the clause that "if the mortgagee deems himself unsafe it shall be lawful for him to take possession of the property and sell the same at public or private sale previous to the time mentioned for the payment of the debt." In that case, the mortgagee, deeming himself unsafe, took possession of the property before the mortgage came due and sold the same without giving personal notice to the defendant. The question considered upon the appeal was whether or not the sale was illegal and void for want of personal notice to the defendant. It was held that the sale was valid. It does not appear from the case as reported that any evidence was given upon the question as to whether or not the plaintiff was unsafe when he took possession of the property, and that question does not appear to have been argued. The court, in commenting upon the case, says: "The taking possession of the property, and the advertisement of its sale was in strict conformity with the condition that when the mortgagee deemed it unsafe he could sell and apply the proceeds to the payment of the debt."

In the case of Farrell v. Hildreth the action was for conversion of a wagon and heifer, which property the plaintiff claimed by virtue of a chattel mortgage executed to him by one John Farrell, containing the dan

ger clause. The defendant, as sheriff, levied upon the property by virtue of an execution issued upon a judgment against John Farrell. The plaintiff demanded the property of the sheriff, which was refused, and the property was sold on the execution. The question raised upon the appeal in that case was whether or not at the time of the levy or demand by the plaintiff of the property the mortgagor had an interest in the property liable to be levied upon and sold on execution. The court held that where the mortgagor has retained no other interest in the property than an equity of redemption, such interest is not the subject of levy and sale, and that there was abundant ground for a feeling of insecurity on the part of the mortgagee. The sale was forbidden, and the property demauded; and the jury would have been warranted in finding that the mortgagee felt himself insecure and unsafe. The question as to whether or not it was necessary for the jury to so find does not appear to have been raised or discussed.

In the case of Hall v. Sampson the action was for the conversion of a piano-forte, which was claimed by the plaintiff under a chattel mortgage containing the danger clause. The defendant, as sheriff, levied upon the same under an attachment, and the same was subsequently sold upon execution in the attachment suit. The mortgage covered a large amount of household furniture, embracing other articles besides the piano. At the time the piano was attached the mortgage was not due. Subsequently the plaintiff deemed himself insecure, and took possession of the mortgaged property except the piano. At this time he knew the piano had been attached, and his reason for not taking it into his possession with the other property was that it was at a distance of ten miles from his residence, and he had no convenient place to put it. The court held that the execution of the mortgage vested the plaintiff with title subject to be defeated by the subsequent performance of the condition, that the mortgage specifically defined the circumstances under which the grantee should become entitled to the right of possession, and that this evinces the mutual intent of the parties that until vested in the mortgagee it should remain in the mortgagor. His possessionary right was to terminate on the failure to pay the debt at the time named, or at such earlier time as might be fixed by the election of the mortgagee, if in good faith he should deem himself insecure; that the mortgagor's interest terminated when the plaintiff, finding his debt insecure, exercised his right under the mortgage to treat the condition as broken; that his act in taking possession of the bulk of the property was an assertion of his claiming enforcement of the forfeitFrom that time he had the right of possession as well as the legal title, and the authority of the sheriff ended with the interest of the debtor. Roy v. Goings, supra, was decided in the Supreme Court of Illinois. The rule as stated by that court is, that under a clause in a chattel mortgage, that if the mortgagee shall at any time before the debt becomes due feel himself unsafe or insecure, he shall have the right to take possession of the mortgaged property, the mortgagee has the right to determine the crisis for himself, subject only to the limitation that his judgment of insecurity must be exercised in good faith, upon reasonable grounds or probable cause. That this rule does not require that there should be actual danger, or that the proof should furnish the court at the time of the trial with reasonable grounds to decide that there was actual danger. But it will be sufficient if at the trial it appears that at the time of the taking of possession there was apparent danger, such that a reasonable man might in good faith act upon. That the feeling of insecurity has reference to

ure.

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