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The Domestic Constitution.-Crim. Con.

such a law should be placed upon the pages of the statute book, albeit the state of morals is such as we have seen, and it might remain useless for want of ability to enforce its penalties. It is true, that it is disreputable here for a person to be the subject of an application for a divorce a vinculo matrimonii, because such a release from the bonds of marriage, will be granted only for the reason that the party is guilty of adultery; but such a party is not deemed guilty of a crime, and he may go abroad, again to enact his deeds of wickedness. It is also true, that an action will lie at the suit of a husband for damages in dollars and cents! for criminal (why not make it so in fact by law?) connection with the wife, founded on a fiction of the law, and denominated per quod consortium amisit; but can money heal the wounds thus inflicted? What husband would not be ready to spurn the verdict and the adulterer together, and rebuke both him and the law, with the declaration, "thy money perish with thee !" as was rebuked the vile sorcerer of old? It is true, likewise, that an action is given to the father, for the damages which the law implies he has sustained by the loss of the service of the daughter, consequent upon the crim. con. complained of and such action has accordingly been styled in the law, per quod servitium amisit. How preposterous to think that an injury, so deep as comes of the conduct of one who has disregarded the spirit and letter of the command, "thou shalt not commit adultery," can be recompensed by the payment of silver and gold?

We admit that verdicts do sometimes in such cases, have a salutary influence in the community; but they furnish an inadequate remedy for so great a wrong. The public morals demand a more efficient remedy; a stronger bulwark against this giant evil. The law of God should be incorporated with the criminal code, with provisions and penalties annexed, that shall secure to the rapacious wrong-doer, a due measure of condign punishment. Hence it is we derive our conviction, that by every principle of public policy as well as by the higher considerations of moral obligation which rests on every man, called in the providence of God to participate in the government of a people-it is incumbent on legislature to aid in the support and enforcement of all the Divine Laws of the Decalogue.

The English Common Law Courts, in the time of Sir William Blackstone, had no greater power over the offence spoken of than any of our courts, and were placed on the same footing as our own are at the present day. In commenting on public wrongs, and giving reasons why the offence under consideration was treated in his days with so much tenderness and lenity, and only ranked among private injuries, that writer remarks: The last offence which I shall mention, more immediately against Religion and Morality, and cognizable by the temporal courts, is that of open and notorious lewdness ; either by frequenting houses of ill-fame, which is an indictable offence, or by some grossly scandalous and public indecency, for which the punishment is by fine and imprisonment. In the year 1650, when the ruling powers found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals, not only

The Domestic Constitution.-Crim. Con.

incest and wilful adultery were made capital crimes; but also the repeated act of keeping a brothel, or committing fornication, were (upon a second conviction) made felony without the benefit of clergy. But at the Restoration, when men from an abhorrence of the hypocrisy of the late times fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigor. And these offences have been ever since left to the feeble coercion of the Spiritual Court, according to the rules of the canon law; a law which has treated the offence of incontinence, nay, even adultery itself, with a great degree of tenderness and lenity; owing, perhaps, to the celibacy of its first compilers. The temporal courts take no cognizance of the crime of adultery, otherwise than as a private injury. (4 Black. Com. 64.) We here see that in England, what was a high crime and punishable with death, came to be of so little public consideration, at to dwindle down from the high eminence of "public wrongs," into the insignificance of a petty private injury, no longer to be classed even among misdemeanors, much less found in the nomenclature of crimes; an injury to be redressed or not, according as the individual injured had the disposition and means to resort to the civil tribunals. For ourselves we say, give us rather the hypocrisy (a prelatical misnomer of the learned commentator) of the times of Cromwell, than the licentiousness of those of Charles, if such must be their effect on the morals of the people and the laws of the land. We see also why a court governed by the canons of the Roman Law, would not very far contribute to the public morals, when it is remembered how that code stood related to the cloister, the monastery and the Vatican. We know how well Rome is fitted for giving laws to punish breaches of the Seventh Commandment! We venture the remark, that the law in the State of New-York, in general and in particular, in relation to the subject under consideration, is not a whit in advance of that which has come to us through the civilians, and which has groped its way through the darkness of the Middle Ages.

The violation of the family relations and covenant strikes a blow at the foundation of society.-The interests involved in this institution are such as no money can purchase, and if destroyed, such as no amount of it can repair. The peace and affection of the parents; the purity and honorable birthright of the children; the pure society existing between brothers and sisters; the great object of mutual support and education in useful knowledge and virtue, secured by the institution; the ties of kindred and home, constituting the invincible bonds of patriotism-all these are of value beyond all riches. Their violation can never be atoned for by pecuniary damages. The rights of property, sacred as they are, are subordinate to these. They stand dearer than liberty, and next to life itself. Why then, should not he be considered a criminal by the law of the land, who sets those great relations and interests at naught?

H. D.

N. Y. Superior Court.-Mier v. Cartledge and Ferguson.

FIRE CAUSED BY A RAILWAY ENGINE.

A very important trial recently took place before Lord Chief Justice Wilde, at Norwich, in England, in an action for compensation for injuries to a barn, stables and granary, by the burning cinders and coke projected from an engine passing on the Norfolk railway. The evidence was conflicting as to the cause of the fire, and the degree of care and attention used by the company's servants.

The Chief Justice summed up the evidence to the jury, who (he said) were to decide, first, whether the fire had been occasioned by the projection of hot cinders from the engine of the defendants; and, if so, whether such a state of things resulted from the negligent omission of such reasonable precautions as were in their reach? If the plaintiff should satisfy them on the first of these questions as to the cause of the fire, it would become the duty of the defendants to show that they had not been guilty of negligence. On that point they had the evidence of scientific men on both sides. On the part of the plaintiff, Professor Fairey had pointed out various means by which the emission of such dangerous projectiles might be checked; and those means had been combatted by the witnesses of the defendants, on the grounds of expense, trouble and inconvenience. Now, no matter what the trouble, expense and inconvenience might be to a railway, they were bound to resort to all reasonable precautions to obviate the risk of damaging life and property along their line; and if, after due caution and notice, they omitted to do so, they would be guilty of negligence, and would be liable in the event of damage done by their engines. In this case it did not appear that the defendants had adopted any expedients whatever to check the emission of fire, though the tenant of this farm had drawn their attention to the fact that the grass had frequently been set on fire near his house and farmyard; and it would be for the jury to say whether the means pointed out were or were not of such a reasonable nature as to call for their adoption.

The jury deliberated twenty minutes, and returned a verdict for the plaintiff, expressing it to be their opinion that the defendants had been guilty of negligence.

New-York Superior Court.

[October General Term, 1849.].

Before DUER, MASON and CAMPBELL, Justices.

THOMAS PLATT V. JOHN T. GILCHRIST AND OTHERS.

The court will not stay the proceedings in a suit to foreclose a mortgage given for consideration money, on the ground that a suit has been brought to recover possession of the mort

N. Y. Superior Court.-Platt v. Gilchrist and others.

gaged premises by a third party claiming under an adverse title. If is only after eviction, where the premises have been conveyed with warranty, that the court will interfere, and that, in order to prevent circuity of action.

THE facts of the case sufficiently appear in the opinion of the court.

C. J. De Witt, for plaintiff.

D. Marvin, for defendant.

MASON, J.-This is a suit to foreclose a mortgage. The mortgaged premises were conveyed with warranty by the plaintiff to the defendant Gilchrist, and the mortgage in question given back to secure a portion of the consideration money. Gilchrist afterwards conveyed the premises, with warranty and subject to the mortgage, to the defendant, Graham, who is in possession, and who alone defends this suit. It appears from her answer that a suit has been brought in the Supreme Court in Equity by certain persons claiming the mortgaged premises by a title paramount to that of the plaintiff, and that this suit is still pending and undetermined, and she insists that the plaintiff ought not to be permitted to prosecute this suit to a foreclosure and sale until the before mentioned suit in equity shall be finally determined.

The cause was brought to a hearing on bill and answer of the defendant, Graham.

The question presented for decision is, whether a suit to collect unpaid purchase money secured by bond and mortgage, will be enjoined and restrained by reason of proceedings having been commenced by a third party to recover the premises under an adverse title.

It may be useful to see, in the first place, how this question stands upon authority.

The earliest case in this state is that of Bumpus v. Platner, decided by Chancellor Kent, in 1814, and reported in 1 Johns. C. R. 213. That was a bill filed to enjoin the defendant from foreclosing a purchase money mortgage, on the ground that the grantor had no title, and that the consideration of the mortgage had therefore failed. He had conveyed with warranty, and no suit had been brought by any person claiming by title paramount. The chancellor remarked that it was said to be very difficult to extract from the books what the rule of equity is upon this point of failure of consideration after the agreement is executed, but that it might be safely said that there is no cause of relief on this ground, when possession has passed and continued without any eviction at law under a paramount title and that it would be without precedent, and dangerous in principle, to arrest and bar the recovery of the debt while the purchaser is still in possession under the purchase deed, and there has been no eviction at law.

This same question came up before him again in the case of Abbott v. Allen, in August, 1817, (2 J. C. R. 519.) That, too, was a bill for relief against a bond and mortgage given for the consideration money

N. Y. Superior Court.-Platt v. Gilchrist and others.

of the mortgaged premises, on the ground that the title to the land was bad, or at least questionable, so that the plaintiff could not raise money on the security of the land, or sell it. No suit, however, had been brought for the recovery of the premises. The chancellor there said, "if there be no fraud in the case, the purchaser must resort to his covenants, if he apprehends a failure or defect of title, and wishes relief before eviction." And again: "If there be no fraud, and no covenants taken to secure the title, the purchaser has no remedy for his money, even on a failure of title. This is the settled rule at law, and I apprehend that the same prevails in equity." "I know of no case in which this court has relieved the purchaser where there was no fraud and no eviction. All the cases that I have looked into, proceed on the ground of a failure of the title duly ascertained."

This would seem to be decisive, and yet in this same case he remarks, "that it would lead to great inconvenience, and perhaps abuse, if a purchaser in the actual enjoyment of land, and when no third person asserts, or takes any measures to assert, a hostile claim, can be permitted, on a suggestion of a defect or failure of title, and on the principle of qui a timet, to stop the payment of the purchase money and all proceedings to recover it." This language certainly favors the idea that such permission might perhaps be granted to a purchaser, if a third person should actually assert, or even take measures to assert, a hostile claim. And accordingly we find, that about a fortnight afterwards, in the case of Johnson v. Gere, (2 J C. R. 546,) the same learned chancellor carried out the idea, and granted an injunction to stay proceedings on a bond and mortgage given for purchase money on the express ground that an ejectment suit had been commenced to recover the mortgaged premises by a third party, claiming under a paramount title. "The defendant," said he, is entitled, and it will be his duty to defend the ejectment suit, and until that suit is disposed of, he ought not to recover the remaining money due on the bond." The premises had been conveyed with warranty. This decision, it is true, was on an ex parte application, and it does not appear what was the further disposition of the case; but it was given so soon after the elaborate opinion in Abbott v. Allen, that he must be considered as intending to qualify and restrict the general expressions it contained, and as meaning to extend the interference of the court to a case like the present. In the case of Leggett v. McCarthy, (3 Edwards' Ch. R. 126,) Vice-Chancellor McCoun says, "until the defendant has been evicted, or an action to deprive him of the possession has been commenced, as in Johnson v. Gere, the court of chancery will not interfere to stay proceedings on his bond and mortgage; and later still, Mr. Justice Bronson, in the case of Edwards v. Bodine, (26 Wend. 114,) says, in reference to the case then before the court, "if there was a serious question about the title, and a suit had been actually commenced to recover a portion of the land, chancery might enjoin the respondents from proceeding at law to collect the whole amount of the mortgage debt until the title had been tried, and in such a case, where the proceedings

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