2l6 HARVARD LAW REVIEW. The peculiar features of the case render the decision of some theoretical and con- siderable practical importance. The opinion of the court is placed chiefly on the ground that a sheriff's duty of guarding a party under arrest is not imposed in any de- gree for the benefit of the prisoner or his family, but is owed to the public alone. Authorities directly in point are entirely lacking, but if the question should be else- where presented, the same decision would probably be reached. See Cooley, Torts, §§ 376> 393- This view, if accepted, disposes of the case. One of the judges, how- ever, further holds that the suit cannot be maintained because, at common law, "in a civil court, the death of a human being could not be complained of as an injury," Baker v. Bolton, i Camp. 493; but it is more than doubtful whether this principle can be extended to actions of contract. Tiffany, Death by Wrongful Act, § 18. The ground taken by the other judge is certainly less open to attack. Corporations — Railroad Mortgages — Foreclosure. — A railroad company issued three classes of bonds, each set constituting a first lien on one of the three divisions into which the road was divided, and a second lien on the other two. The mortgage provided that, in case of default, the trustee thereunder should proceed to sell first the road as an entirety, and then, if no acceptable bid were obtained, the three divisions separately. Held, that the court is not bound by this provision; but, upon foreclosure proceedings, may direct that the road be sold as an entirety absolutely and in the first instance. Low v. Blackford, 37 Fed. Rep. 392 (C. C. A., 4th Circ). The power of sale vested in the trustee is, of course, a merely cumulative remedy, and does not prevent the ordinary proceedings by foreclosure ; but, on principle, any regulations which affect the substance as distinguished from the form of the remedy should be followed by the court when directing a foreclosure sale. The courts are, however, very jealous of any restrictions upon their discretionary powers in regard to foreclosure. Jones, Corporate Bonds and Securities, § 339. Indeed, a provision in a mortgage that the remedy under a power of sale should be ex'^'usive, has been held void as ousting the courts of their jurisdiction. Guaranty, etc. Co. v. Green Cove Sprittgs dr" M. R. Co., 139 U. S. 137. But see Chicago 6^ Vincennes Ry. Co. v. Fosdick, 106 U. S. 47. The trend of authority, therefore, seems to justify the decision in the principal case. Criminal Law — Arrest of Misdemeanants. — A deputy sheriff shot a mis- deme.inant who was fleeing to escape after arrest. Held, that the deputy exceeded his authority, and the sheriff and his bondsmen are liable for his act. Brown v. Weaver, 23 So. Rep. 388 (Miss.). See Notes. Criminal Law — Assault with Intent to Rape — Consent. — Held, that an unsuccessful attempt to have connection with a girl below the age of legal consent cannot be assault with intent to commit rape if she in fact consents. Hardin v. State, 46 S. W. Rep. 803 (Tex., Cr. App.). The case is in line with the minority of the American decisions on this point, pro- viding the statutory definition of assault in Texas does not differentiate it from the common-law cases, — a feature which the court did not consider; it overrules two previous Texas cases, Allen v. State, 36 Tex. Cr. Rep. 381 ; Callison v. State, 2,7 Tex. Cr. Re]}. 211. The English cases and a few American ones maintain that the laws regulating the age of consent in rape merely declare that consent obtained from a girl below that age cannot be set up as a defence, and do not mean that the girl is actually incapable of consenting to the carnal act. Absence of consent being the very gist of an assault, when once the girl has consented to the act, the defendant cannot be pun- ished for assault with intent. Reg. v. Martin, 2 Moo. C. C. 123 ; Smith v. State, 12 Oh. St. 466. The majority of American cases, however, hold that the law conclusively implies the girl's incapacity to consent to the carnal act, and that this incapacity extends also to render her incapable of consenting to those acts which, in the absence of her consent, would constitute an indecent assault. People v. Gordon, 70 Cal. 467. Criminal Law — View of Premises — Presence of Accused. — i^^/^, that a view by the jury of the place where the crime was committed is not part of the trial, and the defendant may waive his right to be present. People v. Thorn, 50 N. E. Rep. 947 (N. Y.). See Notes. Evidence — Construction of Wills. — The testator devised "to my nephew W. R." He had a true nephew W. R., and his wife also had a nephew W. R. Held, that parol evidence is not admissible to show that the wife's nephew was the person intended to take. In re Root's Estate, 40 Atl. Rep. 8x8 (Pa.). See Notes. Evidence — Declaration of Voter — Hearsay. — Held, that the declaration of a voter, made some time after the election, is inadmissible to prove for whom he voted. Lauer v. Estes, 53 Pac. Rep. 262 (Cal., Sup. Ct.).
