Page:Harvard Law Review Volume 2.djvu/405

 RECENT CASES. 387

of a rape upon his wife, which is impossible on account of the fundamental idea of the marriage relation (Hale's PL Cr. 628).

The mmority, on the contrary, expressed the following various opinions: First, that there can be an assault by infection; second, that the husband's fraud vitiated the wife's consent in toto ; and, third, that even if his fraud did not vitiate her consent as to the act of intercourse, still it did vitiate her consent as to the contamination by disease, these being separable (Reg. v. Bennett^ 4 F. & F. 1105; Reg.v. Sinclair, 13 Cox C. C. 28); and that, therefore, although the husband could not be convicted of a rape upon his wife, still he could m con- victed of an assault by way of infection.

Mr. Justice Stephen, who was of the majority, in discussing the application of the maxim that "fraud vitiates consent*' in the similar cases of Reg.y, Flattery, 2 Q B. D. 410 and Reg. v. Dee, 14 Ir. L. C. L. 468, said that '* the only sorts oi fraud which so far destroy the effect of a woman's consent as to convert a con- nection consented to in fact into a rape, are frauds as to the nature of the act itself, or as to the identity of the person who does the act."

Criminal Law — Homicide — Irresistible Impulse. — Mere irresistible impulse, though arising from mental derangement, is not a defence to an indictment for murder, provided the accused knew that the act which he was committing was a crime, morally, and punishable by the laws. State v. Alex- ander, 8 S. E. Rep. 440 (S. C).

This case seems to indicate a disposition on the part of our courts to do away entirely with this defence.

Evidence — Judicial Notice — Railroad Lines. — The court has judicial knowledge of the fact that certain railroads touch the same points, and are prac- tically parallel, and necessarily competing, lines. Gulf, C. osed transaction and with a collateral oral agreement that it should become of no effect if the maker's attorney should disapprove of the transaction; and such note is rendered void upon expreision of the attorney's disapproval. Ware v. Allen, 9 Sup. Ct Rep. 174.

This is, it is to be noticed, the case of a condition subsequent. That it is permissible to introduce evidence of a separate oral agreement constituting a condition precedent to any liability under a written contract, see note to case of Afeekins v. Newberry^ digested in 2 Harv. L. Rev. 289.

Federal Courts — Jurisdiction — Domicile of Corporations. — U. S. Act, March 3, 1887, provides that an action shall he brought in no other district than that of which defendant is an inhabitant. Neld^ that a railway corporation is an inhabitant only of the State which created it, and federal courts elsewhere will not take jurisdiction of an action against it. Filli v. Delaware, L, <St fV» R, Co, 37 Fed. Rep. 65 (N. Y.).

Federal Courts — Precedents — Following State Decisions. — When the construction of a State constitution or statute involves no federal question, and has been settled by the decision of the highest tribunal of the State, it is a general rule of decisions in the federal courts to follow and adopt such decision; and this rule is to be followed even where the U. S. Supreme Court has given a different construction to the State law. There are, however, exceptions to this rule; first, when rights of property have been acquired under former decisions; secondly, when on the same transactions the federal court has first passed, and the decisions of the State court relied upon do not meet the independent judgment of the U. S. Supreme Court; and, thirdly, when general questions of commercial law are involved. Perhaps there is also an exception in cases involving con- troversies between citizens of difi'erent States. iXeiv Orleans Water Works v. Brewing Co., 36 Fed. Rep. 833 (La.).

The above rule, it would seem, is discretionary, and will not be followed so strictly as to violate the demands of truth and justice. See Gelpcke v. City oj Dubuque, I Wall. 175.

Husband and Wife — Husband may enforce Wife's Contract with Himself. — A statute of Indiana gives a married woman a right to contract as to her personal property, and carry on her separate business as if sole, except in certain particulan. Held^ that a husband could recover on an express con-