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OPPRESSIVE COSTS.

Editor of the Albany Law Journal:

LEX.

Your correspondent "Lex " (30 Alb. L. J. 499) might have added to his list of the influences against a lawyer's making a living the following, namely, the application of the denunciation" Væ victis,' to unsuccessful parties, in the shape of exorbitant costs and allowances. I know of a case where a party, a lawyer, not the writer, has a fighting probability of success in an interesting case, and will not sue because of the costs and allowances against him if defeated. Better for the profession, moderate costs, and the rest matter of contract with the client.

NEW YORK, December 30, 1884.

UNUS.

NEW BOOKS AND NEW EDITIONS.

THE WOMAN QUESTION IN EUROPE.

A Series of Essays-Edited by Theodore Stanton, M. A., with an introduction by Frances Power Cobbe. G. P. Putnam's Sons. New York and London.

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We are very apt to relegate this woman question " to what are known as "peculiar people," and yet it is a very important problem, the significance of which increases yearly. Oftentimes its serious phases are belittled by politicians and overlooked by lawyers, but this is certainly not wise. The common-law position of women in political society was formerly simply disgraceful; and it is only recently that modern legislation has emancipated them from a sort of middleage domestic slavery. Once they had few, if any, rights of property; they could be beaten with impunity by their barons, as husbands were significantly called, and their very legal existence was either ignored or impaired under some metaphysical pretense of unity. This book of essays before us, it is true, does not treat of the legal phase of the question, about which the adherents of Codes could, if they chose,

make short work of the historical school of common lawyers, with their ridiculous assumption that the common law was the triumph of human genius.

The editor of this volume, Mr. Stanton, has collected a number of essays from the pens of distinguished women of various European countries, which pretty fully show the degree of recognition now accorded to women in Europe. In this regard this volume is important to legislators, and amply repays a perusal. The literature of this subject is increasing with the importance of the question which is accelerating in momentum like all other questions with an element of right in them. It is only a fortnight since Mr. Throop gave our readers an interesting sketch of an Italian work on "Women in the legal profession." "La Donna e l'Avocatura." The North American Magazine often touches the subject, as do most periodicals of the better sort. We are not prepared to take the most advanced ground on this subject, or to ignore the strong contra argument of the physiologists, but we do believe in every measure which protects the primordial rights of women, life, property, personal security, and liberty, and which tends to annihilate those common-law provisions which once classed them with lunatics, drunkards, idiots and other incapaces.

As a statistical book this volume of essays is not without considerable claim to recognition. As we have indicated, it treats of an important political question, even if we quite ignore that portion which relates to women suffrage.

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NOTES.

WISH I was an owl," said the young lawyer, as he gently felt the dimension of her alligator "Why?" she asked. "Because I could stay up all night, you know, dear," he replied. "What would you want to do such a ridiculous thing as that for?" she tittered. "To wit: to woo."--Pittsburgh Chronicle-Telegraph. Of course that was a cockney lawyer.

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Among the announced contributors to the American Law Journal is “Martha Strickland, Esq." —A bad jury-perjury.-Chief Justice Scott, of Illinois, can probably get a supply of "that from our own and only Sherwood, J.," of Missouri, who showers enough on his opinion in State v. Grant, 79 Mo. 113, for two. A lawyer from Arizona was returning from the East, where he had been to settle up the affairs of some mining company. He was full of indignation at the delays of the law in Eastern courts. "It took me three months," he said, "to get a little formality through that ought to have been settled in twentyfour hours. It worried the life out of me. Now, out in Arizona we don't do things that way. Our courts move quick. We haven't so much style or red tape, and believe that when a thing has to be done the way to get it done is to get right at it and rush it. I remember last spring the judge came to our place to hold court. There was a jail full of fellows there, in for murder and horse-stealing. The judge was in a hurry and said that docket must be closed within twenty-four hours. Well, it was." "How in the world did he do it?" He didn't do it. That night the boys organized a little committee, took the prisoners out of jail, hung the horse thieves, and told the murderers to get out of the Territory. Next morning the judge signed the docket and cost bills and went on his way rejoicing." -Chicago Herald. Place aux Dames." - Magistrate (newly appointed): "Now, constable, what cases this morning?" Police sergeant: "Please, your worship, I have in custody John Simmons, alias Jones, alias Smith, al" Magistrate: "Ah, well I'll try the women first. Bring in Alice Jones!"-Punch.

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The Albany Law Journal.

ALBANY, JANUARY 17, 1885.

CURRENT TOPICS.

seem for HE English language is pretty copious, and it

judges and lawyers and reporters without resort to Latin and French. They do not think so however down in Pennsylvania. Not only do we find the Pennsylvania reports and law journals full of the old Latin law terms, but lawyers there seem obliged to resort to old French to express themselves. It is bad enough to see a complaint or a declaration called a "narr." "Non obstante veredicto" is a relic of barbarism. Why not have done with all kinds of "facias?" "Venire de novo "does not recommend itself to us. "Dissentiente" is pedantic. "Trespass quare clausum fregit et de bonis asportatis," or "q. c. f. et d. b. a.," as it is sometimes considerately abbreviated, fairly takes our breath away. And yet that is as nothing to: "Issue writ of alias scire facias to revive judgment No. 307, Dec. Term, 1851, et quare executionem non, and to show cause why James Murphy, administrator d. b. n. c. t. a., should not be substituted as defendant." "Procedendo " fills us with awe; we are not quite sure what it means, but it has a pompous sound and conveys a vague impression as of a procession headed by a drum-major. But what especially vexes us is the employment of old French. What possible excuse for "semble?" And "sur' is a greatly overworked preposition. "Sur rule" and "sur exceptions" and "sur petition " are vile phrases. But when we come to such a mixture as "scire facias sur mechanics' lien," or "scire facias sur mortgage," patience ceases to be a virtue, and we would gladly make the quietus of the writer with a bare bodkin from a goose's wing. Let us grant, sell, assign, bequeath, or otherwise make over all this antediluvian nonsense to the venerable persons who believe that laws cannot be written. At all events, what we do write let us write in our own language. There is one phrase for which we believe there is no Latin or French equivalent in use, and that is "costs." When lawyers get down to these there is no more fooling with foreign dead or dying languages, but they speak right out in plain and honest Saxon lest they should be misunderstood.

It seems difficult enough to write our own language unambiguously, without dabbling in other tongues. We are indebted to the New York Daily Register for two curious cases of construction arising on punctuation. In Nixon v. Cameron, Eng. Ct. of App., 32 Week. Rep. 834, a will contained these words: "I hereby give and bequeath unto Hannah Cameron, my wife, the house in which she resides in Cornbrook Park and all the furniture therein, toVOL. 31-No. 3.

gether with the sum of £3 10s. per week for her natural life." The question was whether the words "for her natural life " qualified the gift of house and furniture, as well as the annuity. To preclude such ambiguity the clause ought to have been inserted immediately after naming the wife, thus: I give to H. C., my wife, for her natural life, the house, etc. The trial court held that the clause, as it stood, did testator not qualify the gift of the furniture. A later pro

he had only given a life estate in the house. The appellate court reversed the decision of the trial court as to the furniture, and said the introductory words govern the whole sentence, and the concluding words, "for her natural life," in such a sentence so constructed, are appropriate to describe the interest intended to be taken in all, and not only in the last, antecedent of the subject governed by the verbs "give and bequeath." In James v. Young, 32 Week. Rep. 982, one question was as to the meaning of the words "are, and shall be liable to be, evicted therefrom." The court held that it should be read, not as the punctuation indicated, but "are and shall be," not "evicted," but "liable to be evicted therefrom." The word "are" applies, not to absolute eviction, but to the possibility of eviction. We may add the case of Commonwealth v. Bosch, Pennsylvania Common Pleas, Nov. 1884, 15 W. N. Cas. 316. A law forbidding business and labor on Sunday provides that "nothing herein contained shall be construed to prohibit the dressing of victuals in private homes, bake-houses, lodginghouses, inns and other houses of entertainment for the use of travellers, sojourners and strangers." The question was whether the phrase "for the use of travellers, sojourners and strangers" qualifies "the dressing of victuals," or other houses of entertainment," and it was held to qualify the latter; and so it was held lawful for an innkeeper to supply ice-cream at his inn on Sunday to residents of the town, not sojourning at the inn.

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While we are engaged on the subject of writing English, we may add that it is also very difficult to write a statute so plain that some body will not misunderstand it. We find an amusing example of this in the current newspapers. Section 453 of the Penal Code enacts that "An assemblage in any public house or other place of three or more persons disguised by having their faces painted, colored or concealed is unlawful." A man went to the theatre wearing a false beard. He had no companions in inquity. But the police took him in, and imprisoned him over night, and next morning he was fined $5. There is some doubt whether wearing a false beard is "concealing" the face. The phrase was probably aimed at masked balls. But at all events there was no "assemblage.” The beard was so evidently false that the audience tittered, but that was no more "disorderly " in the man than it would be for a woman to wear a "Mother Hubbard" gown.

The natural love of approbation has led us oc- Africa. What have we to do with such far-off casionally to publish some of the numerous expres- questions and complications? We have had occassions of approval which come to us from our read-ion to say before that we regarded Mr. Evarts' iners. If there is any thing on which we pride our- terference in Egyptian complications as unfortunate, selves however it is our impartiality, and so we feel and that it is already cited against us by the bound to give publicity to the following, written by Powers. Should we embark in the Congo Free a late Florida subscriber on discontinuing this jour- State matter, how can we object to European dicnal: "I hope you will kindly excuse me if I tell tation in the Panama and Nicaraguan questions? you plainly my sole reason for so discontinuing it. And that we must object is already clearly foreseen. I think you are too kind to somebody and too cruel It is difficult to know how far we can afford to to your readers in printing so many of those long- isolate ourselves from international questions, but it winded judges' decisions or opinions, who are so is pretty clearly our interest to confine our suprefond of reiterating over and over again, using only macy to this hemisphere. When the question of a slight change of words." We are glad that our interference seems doubtful, let some ambitious friend lays it to the judges and not to us. Probably secretary of State forego the pleasure of cutting a he could not conscientiously accuse us of being figure at some convention of the European powers, "long-winded," whatever else our faults may be. for the wily diplomats of Europe are sure to outThere is some justice in his reason. The judges wit him and his country. are "long-winded," but it is the fault of our system, and not of the judges. So long as the judges are the source and breath of the law, they must keep on flowing and blowing. Most lawyers are very anxious to consult these oracular utterances, and to watch for sudden changes as they watch the weather-vane and the barometer and thermometer. There may be no necessity for this anxiety in the halcyon and millennial legal climate of Florida, but until we get a Code-perhaps always-there will be great need of keeping an ear open to these Delphic utterances in all other communities. We should be blamed by more if we did not promulgate them.

The New York State Bar Association will hold its annual meeting in the Common Council Chamber, in the new City Hall in this city, Tuesday, the 20th inst., at 10 A. M. A reception will be held the same day at 8 P. M. A general attendance of members is requested.

IN

NOTES OF CASES.

*

N Knowlton v. Hersey, 76 Me. 345, K. wrote to H.: "The bearer of this letter, my son-in-law, wishes to place a stock of groceries in his provision and meat store in this place. To enable him to do this, I am willing to be responsible to you for the amount of groceries he may order of you." Held, that the letter did not create a con tinuing liability. The court said: "It seems to us that the letter was not intended by the writer, and could not properly be understood by those to whom it was addressed, as creating a continuing liability. It expresses a willingness to aid Mr. Young in starting a new branch of business, but fails to express an intention to continue such aid in the future. In the language of the letter, the aid which the writer proposes to render is to enable Mr. Young 'to place a stock of groceries in his provision and meat store,' not to replenish or keep such a stock good afterGovernor Hill's message to the Legislature ward; and that when the stock of groceries had touched upon a useful reform of legislative methbeen selected, and with the aid of Mr. Knowlton ods, and the necessity of employing a trained class hnd been paid for, the latter's liability ended, and in drafting legislative acts. We hope before long that two months after other goods could not be to see a new departure in this respect and a regular sold to Mr. Young on Mr. Knowlton's credit, withclass of parliamentary solicitors at Albany whose out the latter's consent, and a new promise to be business it is to prepare bills for submission to the accountable for them." To the same effect, Morgan Legislature; then the English and the law of our v. Boyer, 39 Ohio St. 324; S. C., 48 Am. Rep. 454. session laws may begin to be a little orderly. At present an undigested mass of legislation tumbles annually out of the Legislature. Oftentimes it disfigures the statute book or else it throws out of key other well-prepared statutes which precede it. We welcome Governor Hill's official intimation as an important recognition of what all thoughtful people recognize.

The Congo Free State question is attracting the attention of the international lawyers by reason of American representation at the European Congress. Mr. Belmont's protest was better late than never. It must be contrary to the policy of this country to interfere in the proposed European partition of

In State v. Kelly, 76 Me. 331, it was held that when a mortal blow or wound is inflicted in a fort of the United States, and the person struck or wounded dies out of the fort, the crime cannot be regarded as committed where the person dies. The court said: "The conclusion is therefore inevitable that the courts of this State do not have jurisdiction of the crimes of murder or manslaughter committed in a United States fort. In fact we do not know that this proposition is denied by any one. But it is said that although a mortal wound may be inflicted within a fort, still if the person wounded dies elsewhere, the crime must not be regarded as

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

rape.

stated, held, that the prisoner was guilty of 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

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 consent. Thus in Flattery's case, where she consented to the performance of a surgical operation, and under pretence of performing it the prisoner had connexion 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 having 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 incapable 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 difference between the act of consent and the act be

against her will, which the language of the

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.

THE NEW DIVORCE LAW IN FRANCE.

URING

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the 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

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

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

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