Don Moran v. People.

v. The State, 8 Eng. 360; and see Strang v. The People, 24 Mich. 1. Nor, as appears by the case last cited, need the threats be of force to be used in accomplishing the act; as in that case the principal threat was, that if she refused he would take her away where she could never get back. In fact, we think the terms of the statute in reference to force are satisfied by any sexual intercourse to which the woman may have been induced to yield, only through the constraint produced by the fear of great bodily harm, or danger to life or limb, which the prisoner has, for the purpose of overcoming her will, caused her to apprehend, as the consequence of her refusal, and without which she would not have yielded.

It remains only to apply these principles to the present case.

Considering the way, and the purpose for which, the girl had been placed by her father under the care and treatment of the defendant, as her physician, the evidence had a tendency to show, and the jury might properly have found, that the girl was induced by the defendant to submit to the sexual intercourse with him, from the fear and under the apprehension, falsely and fraudulently inspired by the defendant for the purpose of overcoming her opposition, that, if she did not yield to such intercourse, he intended to, and would, use instruments "for the purpose of enlarging the parts," and that such operation with instruments would be likely to kill her. And if the jury should so find-with or without the other facts submitted to them by the charge given - and that she would not otherwise have yielded, it would be their duty to find the defendant guilty of the crime charged.

The judgment must be reversed, and a new trial awarded.

CAMPBELL, J., concurred.

COOLEY, J. As my brethren are agreed in this case, I concur in the result, while not fully assenting to all that is expressed in the opinion.

GRAVES, J., did not sit in this case.

NOTE.-In Reg. v. Case, 19 L. J. M. C. 174; 1 Den. C. C. 580; 4 Cox's C. C. 220, it was decided that if a surgeon professing to take steps to cure a girl of a complaint has carnal connection with her, and she is ignorant of the nature of his act and makes no resistance, solely from a bona fide belief that he is as he represents, treating her medically, with a view to her cure, his conduct amounts to an assault. To constitute a rape on a woman conscious and capable of giving consent at the time, there must be an actual resistance of the will-non-resistance to connection, permitted under a misapprehension induced by the conduct of the man, by a woman conscious and capable of

Voorhies v. Frisbie.

consenting, amounts to consent, though unintentional, and prevents the offense amounting to rape. Reg. v. Barron, 38 L. J. M. C. 20; 1 L. R. C. C. 156; 11 Cox's C. C. 191. It was said in Reg. v. Stanton, 1 Car & Kir. 415, where the patient was directed to lean forward for the purpose of receiving an injection, and where sexual intercourse was then attempted, that the defendant was guilty of an assault. See Walter v. People, 50 Barb. 145.

Commonwealth v. Burke, 7 Am. Rep. 531; 105 Mass. 376; the supreme court of Massa chusetts held a man guilty of rape for having connection with a woman without her consent, while she was drunk and insensible. The opinion presents a very elaborate examination of the essentials of rape.

In New York, under 2 R. S. 663, § 23, having carnal connection with a woman intoxi cated to the point of insensibility, forcibly, is not rape, but is merely an offense against the person. To constitute the crime under that statute the connection must be absolutely against the will of the female. People v. Quin, 50 Barb. 128.

But in Reg. v. Mayers, 12 Cox's C. C. 311, it was held that if a man has or attempts to have connection with a woman while she is asleep, it is no defense that she did not resist, as she was incapable of resisting, and that the man can therefore be found guilty of rape or of an attempt to commit a rape.

In Strang v. People, 24 Mich. 1, it was held, that to warrant a conviction for rape, the jury must be satisfied that the connection was had by force and against the will of the prosecutrix, and that there was the utmost reluctance and resistance; or that her will was overcome by fear of the defendant, and that the terror of his threat was so extreme as to preclude resistance. In that case the prosecutrix testified that the defendant had threatened her and that she did not resist because of extreme fear, and a conviction was sustained. - REP.

VOORHIES V. FRISBIE.

(25 Mich. 476.)

Bankruptcy — jurisdiction of State court of suit by assignee.

A State court has no jurisdiction of a suit by an assignee to set aside a conveyance made by a bankrupt, in fraud of the bankrupt act.

BILL in equity filed by William T. Voorhies, assignee of William C. Bennett, a bankrupt, against Abijah H. Frisbie and another. The opinion states the case.

Spaulding & Cranson and D. G. Holbrook, for complainant.

Waldridge & Selden, for defendants.

CAMPBELL, J. The bill in this cause was filed by an assignee in bankruptcy, to set aside a conveyance alleged to have been made by the bankrupt in fraud of the bankrupt act. By some apparent

Voorhies v. Frisbie.

misunderstanding, the defendants' default was taken, and the circuit court, acting within a discretion which we cannot review, refused to open it. The case, therefore, comes before us on the sufficiency of the bill.

The bill would be fatally defective under any circumstances not dependent on the bankruptcy proceedings. It is not only entirely lacking in direct allegations which would make out a fraud against creditors, but it does not show that any creditor had taken such steps as would, apart from the bankrupt law, give him any right to complain of the fraud, if existing. The only question presented is, whether the assignee in bankruptcy could resort to the circuit court of Clinton county to obtain relief against a conveyance alleged to have been made in fraud of that statute.

It cannot be questioned that the bankrupt law is as binding in one court as in another, and a title obtained by valid proceedings under it must be respected. In private hands it would be, like any other vested right, enforced in any court having cognizance of such property rights, without any necessary regard to its origin, as a land title derived from a patent, for purposes of jurisdiction, stands on the same footing in all courts, in real actions, with a private grant or inheritance.

But the right of an assignee in bankruptcy to apply to a State court to have a conveyance set aside as fraudulent is claimed by defendants to stand on different grounds, and we think correctly.

The fact that the fraud charged is not a fraud against our State laws, is not decisive. It is not uncommon to seek redress in a forum where parties can be found, for actual frauds committed. elsewhere, not being merely statutory. And as the bankrupt law must bind all tribunals in this country, acts committed against it could not be recognized as lawful, whether affirmative relief could be granted against them or not. The difficulty arises from other considerations, involving the danger of a conflict of jurisdictions, if State courts should attempt to adjudicate upon the peculiar class of cases to which the present controversy belongs. Upon cases not involving similar difficulties we express no opinion.

By the first section of the bankrupt act, the courts of the United States are vested with very full and complete jurisdiction, not only to determine the liabilities of the bankrupt, but also to try the conflicting claims of all parties, debtors and creditors, to provide for collecting all the assets, ascertaining and liquidating all liens, and

Voorhies v. Frisbie.

regulating every thing necessary to be done in the premises until the proceedings are closed. The second section also makes express provision for suits at law, or in equity, brought by the assignee against any person claiming an adverse interest.

In Ex parte Christy, 3 How. 292, the plenary power of the courts of the United States, under similar authority of the bankrupt law of 1841, was very thoroughly discussed, and in some cases, at least, jurisdiction was asserted, to control parties litigating in State courts; an interference not lawful in ordinary cases, and which depends on the exclusive character of the bankruptcy power, vested in the general government under the constitution. No express decision was made as to whether the jurisdiction of the United States was exclusive, and in a subsequent case, in the same volume that point was also reserved. Norton's Assignee v. Boyd, 3 How 426. It would make no great difference in those courts whether action should be had in the State courts or not, when they have so large a control over the litigants as practically to reach the proceedings. But it is a very serious question, whether an independent court can be said to have jurisdiction, when subject to such interference; ard quite as serious a question, whether it is proper to exercise it, if theoretically existing.

It cannot be doubted, that there is power in congress to make jurisdiction exclusive over suits arising under the laws of the United States, where the proceeding is a direct one to enforce peculiar rights originating under the statute, and not within any other law. The right to assail the conveyance in question is purely statutory, upon the case made by the bill. It is also in the nature of a penal enactment, in creating a forfeiture and disability enforceable in favor of the assignee. It is generally understood to be settled law, that no court will take jurisdiction for the sole purpose of enforcing the penal consequences imposed by any other authority which has its own courts to enforce them. The Antelope, 10 Wheat. 67. It was held in Gelston v. Hoyt, 3 id. 246, that a State court cannot lawfully assume any such jurisdiction under the laws of the United States. In those cases where it is loosely said there is a concurrent jurisdiction over certain crimes, it is only because the same act may violate the laws of both jurisdictions. Thus, in Fox v. Ohio, 5 How. 410, it was held that passing counterfeit money might be thus punishable, but it was never supposed that a State could punish it under an act of congress, or as any thing but a State

Voorhies v. Frisbie.

offense. We have refused to enforce the penalties of foreign usury laws not avoiding the contract, although if the contract was absolutely void where made, it would not be held valid anywhere. Collins Iron Co. v. Burkam, 10 Mich. 283. And thus far, at least, the penalties and disabilities under the patent and copyright, and navi. gation, laws have not been understood to fall within the cognizance of State courts, although the language giving jurisdiction to the courts of the United States is no more exclusive than that of the bankrupt law. Yet contracts concerning the transfer of such property are cognizable in all courts, like other property contracts.

We think the purpose of the present action is directly to aid in the administration of the estate of the bankrupt, and that the bankrupt law regards these proceedings as a part of the course which should be within the control of the courts having jurisdiction under the statute. If a State should affirm the title of the defendants, and deny the claim of the assignee, there is no appellate resort except to the United States supreme court. If we have jurisdiction, our judgment must be valid till reversed. But it can hardly be supposed that it was designed that summary proceedings should be subject to such long delays, and that the settlement of the estate should be retarded by resort to courts of another jurisdiction. The inconvenience of such a course has, we think, a decided bearing upon the construction which the statute itself requires. If this bill had been filed by defendant to quiet title against the assignee in bankruptcy pending bankrupt proceedings, the want of jurisdiction would not be disputed.

The conditions on which State courts can, in the absence of any distinct restriction, exercise concurrent jurisdiction with courts of the Union, have never been clearly defined, and perhaps cannot be. So far as any general doctrine is laid down, it seems to indicate that State courts may, where not otherwise restricted, exercise jurisdiction over cases where they might have done so independent of the constitution and laws of the United States, but that they can exercise no new powers wholly dependent on, and conferred by, statutes of the United States. 1 Kent's Com. 397. Or, as well expressed by the supreme court of Massachusetts, "the jurisdiction is in such case exercised, not upon the ground of a judicial authority conferred as such by a law of the United States, but as the ordinary jurisdic tion of the State court; acting indeed, in the particular case, upon legal rights which may have been created, or materially affected, by