Maria Theresa, in 1753, issed an ordinance to provide for the uniformity of the law in all the provinces of the Austrian Empire. She appointed a commission to digest the existing law; the work of the commission, due to Prof. Azzoni, appeared in 1767 in eight volumes; but it was not satisfactory, so she authorized Counsellor Harten to construct a Code on a different basis. The conditions she prescribed were: 1. To abstain from doctrinal development. 2. To have in view contestations of the most frequent occurrence. 3. To be clear in expression. 4. To be governed by natural equity, rather than the principles of the Roman law. A bill in equity to redeem was brought against the mortgagee, in equity to redeem a mortgage and for an ac Edward D. Bassett, for complainants. Geo. B. Barrows, Chas. F. Page and Franklin P. Owen, for respondents. DURFEE, C. J. The bill states that on October 23, 1873, Walter J. Reynolds, being the owner of a lot in Providence, mortgaged it for $800 to Stephen H. Williams; that subsequently the lot passed by mesne conveyances to Charles W. Adams, who, December 5. To simplify the laws, and to refrain from too 30, 1874, gave two mortgages thereon to Hiram C. much subtlety in details. The first part of the Code was published in 1786 under Joseph II; it was submitted to the universities, and the courts of justice, and then put in force July 7, 1810. There are different opinions concerning the success of the French and Prussian Codes. It can be safely affirmed however that they were vast improvements upon the then existing condition of the law. Austin thinks that the absence of definitions in the French Code is one of its defects. On the other hand the Supreme Court of Louisiana says, "that definitions are at best uusafe guides in the administration of justice, and their frequent recurrence in the Louisiana Code is the greatest defect in that body of laws."Egerton v. Third Municipality,1 La. Ann.437. The opinion almost universally accepted as correct, is that the primary object of Code should be order, rather than reform, a scientifically arranged exposition, and re-expression of existing law, clear, simple, and free from doctrinal development. It is believed that under such a Code the law will lose its "inelegantia," a term used by Gaius, to express want of consistency and harmony, and may be made "cognoscible" at least to the legal profession. The history of codification teaches that the task of preparing a Code of laws is difficult, that its proper execution is a work of years, to be intrusted not to a deciduous committee of fugitive legislators, but to a permanent commission of the most enlightened and cultivated jurists, whose project, prior to adoption, should be subjected to rigid and universal criticism. If one influential State in the Union should lead the way, and achieve even partial success, its example would be imitated by others, and at no distant day, the law throughout the Union would become homogeneous, and no congressional legislation would be needed to establish uniformity on particular subjects within the competency of the Federal government. On the other haud a demand would arise for au amendment to the Constitution, so as to adopt the courts of the United States to the administration of justice, under a system, in which the distinction between law and equity had lost its significance. MORTGAGE-MORTGAGEE BUYING PREMISES AT TAX SALE. RHODE ISLAND SUPREME COURT, HALL V. WESTCOTT. A mortgagee, whether in possession or out of possession, cannot purchase the mortgaged estate at a tax sale, and hold it under the tax title as against the mortgagor or other mortgagees. Pierce, to-wit, one for $3,250 and one for $500, subject to the mortgage for $3,250; that the mortgage for $3,250, though taken solely in Pierce's name, belonged equally to him and the complainaut, Harriet Hall; that Pierce assigned the mortgage for $3,250 to the defendant, Charles A. Westcott, who thereupon, January 23, 1875, gave the complainant Harriet Hall, a writing in which he declared that he held said mortgage as to one-half in trust for her; that said Pierce subsequently assigned said mortgage for $500 and his interest in said mortgage for $3,250 to said Harriet, and that said mortgage for $500 contained a power of sale under which, in January, 1882, said Harriet duly sold the estate, buying it herself under notice as authorized by statute. The bill alleges that the defendant is in possession and contains other allegations. It asks for an account and for leave to redeem. The defendant sets up several defenses. [Omitting others.] The third defense is that the mortgaged lot was sold for the nonpayment of taxes and bought by and conveyed to the defendant. This raises the question whether a mortgagee or his assignee, out of possession, can become a purchaser at a tax sale with the same effect as against the mortgagor and other mortgagees as if he were a stranger to the estate. There is some conflict of authority on this point. All the cases agree that there are persons who stand in such relatious to the estate they cannot purchase as if they were strangers. No person whose duty it is to pay the tax can be permitted to purchase at a sale for its nonpayment and acquire a good title as against others who are interested in the estate, since to permit him to do so would be to permit him to profit by his own default. Under this rule mortgagors, mortgagees in possession, life tenants and tenants obligated by contract to pay the taxes are incapacitated to become purchasers. The iucapacity has likewise been held to extend to tenants in common, for if the estate is sold for taxes to one of the tenants, it is sold for his default as well as for the default of his cotenants. Page v. Webster, 8 Mich. 263; Butler v. Porter, 13 id. 292; Cooley v. Waterman, 16 id. 366; Cooley Tax. 346, 347. So a person who occupies a fiduciary relation as regards the estate cannot purchase it for himself. The trust in the one-half of the mortgage for $3,250 is protected under this rule. And there are cases which announce, or at least presuppose, a still broader doctrine, which may be stated thus, namely, that a purchaser, who has an interest in the estate, such as would entitle him to redeem it if sold to another, will be presumed to have purchased it for the protection of that interest, or to save it from sacrifice, and will be required to hold it, even after the statutory period for redemption has expired, simply as security for his reimbursement, We find this doctrine nowhere more clearly asserted than in Fair v. Brown, 40 Iowa, 209. The defendant there was interested in the estate by judgment lien and as a second mortgagee. He bought certificates of sale for taxes and subsequently took the tax deed. The court held that the prior mortgage was not defeated. "The land," say the court, "is a common fund for the payment of the plaintiff's, i. e., the prior mortgagee's, mortgage and the defendant's liens. Defendant was authorized to redeem from the tax sale. Equity will not permit him to acquire the title for an inconsiderable sum when he was authorized to remove the trifling incumbrance by redemption. Though not bound to pay the tax, yet it was his right to do so to protect his heirs. He cannot obtain that protection by pursuing a course that will deprive the mortgagee of his security and leave the mortgagor to sustain the weight of the liens, which are personal judgments, after being deprived of his property by tax title." See also Porter v. Lafferty, 33 Iowa, 254; Stears v. Hollenbeck, 38 id. 550, In Middletown Savings Bank v. Bacharach, 46 Conn. 571, the defendant having had an undivided eighth of an estate subject to a mortgage set out to him under an execution, purchased the estate at a sale for taxes assessed before he became interested in it, and the court held that he could not set up the tax title to defeat the mortgage, he being entitled to redeem the mortgage, which yet he could not do, if the mortgagee had paid the taxes, without reimbursing him. The court also said that the mortgagee was similarly incapacitated, because he could pay the tax and add the amount of it to the mortgage debt. In Connecticut Mut. Life Ins. Co. v. Bulte, 45 Mich. 113, the court lay down the doctrine that where a mortgagee or one of two or more mortgagees purchases the estate at a tax sale the purchase may be treated as payment. "It is as just and as politic here," say the court, "as it is in the case of tenants in common, to hold that the purchase is a payment of the tax." In the later case of Maxfield v. Willey, 46 Mich. 252, the court affirms the doctrine. "When the mortgagee," says the court, "instead of making payment of the taxes, makes a purchase of the land at tax sale, we have no doubt of the right of the mortgagor to have the purchase treated as a payment, and to compel the caucelment of the certificate or deed on refunding the amount paid with interest." The opinions in these cases were delivered by Judge Cooley, who in the pre 31 id. 359, 379; Chickering v. Failes, 26 Ill. 507; McLaughlin v. Green, 48 Miss. 175. In California it is held that a person who is under any obligation, either moral or legal, to pay the taxes, cannot become a purchaser. Moss v. Shear, 25 Cal. 38; Christy v. Fisher, 58 id. 256. Other cases adopt a narrower view and maintain that any person can become a purchaser who is not under any legal duty to pay the taxes. Williams v. Townsend, 31 N. Y. 411; Waterson v. Devoe, 18 Kans. 223; Bettison v. Budd, 17 Ark. 546; Ferguson v. Etter, 21 id. 160. Our conclusion is that a mortgagee either in possession or out of possession is not entitled to purchase the estate at a tax sale and set up the tax title as against the mortgagor or the other mortgagees. They all have a common interest in the preservation of the estate, and therefore if either of them purchases the estate at a tax sale, it should be presumed in favor of the others that he made the purchase for the common protection. The fourth defense is that the complainants have been guilty of laches in not sooner bringing the suit or pressing their claim. We do not think there have been laches sufficient to bar the suit. The defendant had only been in possession of the mortgaged premises about six and one-half years when the suit was begun. We think a case is shown which entitles the complainants to relief. CRIMINAL LAW-ASSAULT WITH INTENT TO COMMIT RAPE-WHAT CONSTITUTESEVIDENCE. SUPREME COURT OF INDIANA, JUNE 25, 1886. STEPHENS V. STATE. Under an indictment for an assault with intent to commit a rape upon a female child under twelve years of age, the prosecution must prove both the intention and an assault in pursuance of such intention; and after certain familiarities consented to by the girl, the attempt is abandoned on her refusal to allow the intercourse, there can be no conviction. paration of his book on Taxation had occasion to make A the subject a special study. The most recent case which we have met with is Woodbury v. Swan, 59, N. H. 22, in which the Supreme Court of New Hampshire decided that the holder of a mortgage cannot defeat a prior mortgage by acquiring a tax title. The court rest their decision on the following reasons, as declared by Bingham, J., in delivering the opinion of the court: "Mortgagor and mortgagee have a unity of legal interest in the protection of their titles against sale for the nonpayment of taxes, and against outstanding tax titles; and it is not equitable that either of them should act adversely to the other in the acquisition and use of such titles. Therefore the mortgage contract comprises an implied agreement, that while either party may buy a tax title for the preservation of his right in the mortgaged property, neither of them will buy a tax title for the extinguishment of the title, in the maintenance of which they as well as partners and tenants in common are in law jointly concerned. The common interest of these parties in the mortgaged property creates a relation of trust and confidence." Other cases may be cited which support the same view, though not always for the same reasons. Moore v. Titman, 44 Ill. 367; Harkreader v. Clayton, 56 Miss. 383; Haskell v. Putnam, 42 Me. 244; Bassett v. Welch, 22 Wis. 175; Whitney v. Gunderson, PPEAL from Tippecanoe Circuit Court. R. P. De Hart and Coffroth & Stuart, for appellant. F. T. Hord, Atty.-Gen., for appellee. NIBLACK, J. This was a prosecution against the appellant, David Stephens, upon an indictment containing two counts. The first count charged the appellant with having made an attempt to commit a violent injury upon one Annie Myers, a female child under twelve years of age, with intent to feloniously ravish and carnally know her, the said Annie. The second count charged substantially the same offense, giving only the details of the alleged transaction with greater particularity. A jury found the appellant guilty as charged, and he was adjudged to pay a fine of $25, and to be imprisoned in the State's prison for the term of ten years. The evidence tended to show that Annie Myers, the prosecuting witness, was a female child between eleven and twelve years of age, and was a good deal upon the street, voluntarily soliciting contributions for the support of herself and her mother; that she did not know the appellant by name, yet she had frequently seen him upon the streets of the city of La Fayette, and had sometimes spoken to him; that at the foot of Brown street, in that city, there is a bridge across the Wabash river, known as the "Brown-street Bridge;" that during an afternoon in July, 1885, the appellant met Annie Myers, aboved uamed, on a street not far from the Brown-street bridge, and solicited her to go to the Brown-street bridge with him, promising to give her a nickel if she would go; that she at first declining, he the second time urged and coaxed her to go, again promising to give her a nickel if she would consent to go; that she thereupon consented to go, and went to and into the bridge; that the appellant soon followed, and after entering the bridge, opened his pantaloons, and exposing his private parts to the child, had her place her hand upon that part of his body; that he then hugged and fondled the child, at the same time raising her clothes in front, and pressing his private parts against her body; that in this position he solicited her to permit to have sexual intercourse with her, but she would not consent; that dallying in this way for a few moments, he desisted from further liberties, gave the child a nickel, aud went away; that every thing that was done at the time was with the consent of the child, she objecting only to the proposed sexual intercourse, which the appellant did not urgently insist upon, and which he did not in any manner accomplish. Section 1917 of the last revision of the statutes of this State declares that "whoever unlawfully has carnal knowledge of a woman, forcibly, against her will, or of a female child under twelve years of age, is guilty of a rape, and upon conviction thereof shall be imprisoned in the State's prison not more than twentyone years, nor less than five years." It was previously provided, by section 1909 of the same revision of the statutes, that "whoever perpetrates an assault, or an assault and battery, upon any human being, with intent to commit a felony, shall upon conviction thereof, be imprisoned in the State's prison not more than fourteen years, nor less than two years, and be fined not exceeding $2,000." Although the indictment in this case was formally based upon this latter section, a proper decision of this appeal involves, to some extent at least, a construction of both sections of the statutes above set out. It was enacted in 1852, as a part of our revised system of laws passed during that year, that thereafter "crimes and misdemeanors shall be defined, and punishment therefor fixed, by statutes of this State, and not otherwise;" and that provision of law still continues in force. Rev. Stat, 1881, § 237. In giving a construction to that enactment it has been uniformly held that we have no longer any common-law offenses in this State, and that however immoral, reprehensible, or revolting an act may be, it cannot be punished either as a crime or misdemeanor unless it has been defined and declared to be either the one or the other by some statute. Rosenbaum v. State, 4 Ind. 599; Hackney v. State, 8 id. 494; Dillon v. State, 9 id. 408; Beal v. State, 15 id. 378; State v. Ohio & M. R. Co., 23 id. 362; Jones v. State, 59 id. 229. Unless therefore it was made to appear by the evidence that the appellant, in what he did, violated some express statutory provision, his conviction of the offense with which he was charged cannot be sustained. Both counts of the indictment, in legal effect,charged the appellant with having made an assault upon the prosecuting witness with the intention of committing a rape upon her. It was therefore incumbent upon the State to prove, that at the time to which the evidence had relation, the appellant had the intention of committing a rape upon the prosecuting witness, and that he, at the same time, made an assault upon her in pursuance of that intention. It is conceded that if the appellant had persisted, aud had succeeded in having sexual intercourse with the prosecuting witness, he would have been guilty of rape. The fair inference too from the evidence was that he desired to have such sexual intercourse, aud probably would have consummated his desire if circumstances had proved to be in all respects favorable to such a result. But to entitle the State to maintain a prosecution for an evil intention some concurring act must have followed the unlawful thought. As in contract, so in tort or crime, a mere unexcuted intention does not bind or commit the person who conceives or indulges it. Parmlee v. Sloan, 37 Ind. 482: 1 Bish. Crim. Law, § 204; Clements v. State, 50 Ala. 117. So if a party abandon his evil intention at any time before so much of the act is done as constitutes a crime, such abandonment takes from what has been done its indictable quality. 1 Bish. Crim Law, §§ 208a, 733. Applying the law, as stated, to so much of the evidence as tended to disclose an intention on the part of the appellant to have sexual intercourse with the prosecuting witness, the question remains, did the defendant commit an assault upon the prosecuting witness, within the meaning of section 1909 of the statutes hereinabove set forth. Whoever having the present ability to do so, unlawfully attempts to commit a violent injury on the person of another, is guilty of an assault (Rev. Stat. 1881, § 1910), and this implies an unwillingness of want of consent on the part of the party assailed. The question as to whether a female child under the age which disqualifies her from assenting to sexual intercourse may so far consent to the taking of improper and indecent liberties with her person as to relieve such liberties of their unlawful and indictable character is one which has received some attention both in England and in this country, but is a subject upon which the authorities are not numerous, and are very considerably in conflict. But the difference between the statutes, or systems of jurisprudence, upon which some of the decided cases rest, is sufficient to account for the conflicting conclusions respectively reached by them. At common law an attempt to commit a rape was a misdemeanor only, and Bishop on Statutory Crimes, at section 496, says, that "by the better judicial determinations there cannot be, under the common-law rules, an assault with intent to have the criminal carnal knowledge of a girl with her consent; because by the common law, violence consented to is not an assault, and the statute which makes her consent immaterial in defense of the carnal knowledge does not extend also to the assault." The same author continuing through sections 498 and 499, further says: "Some of our American courts, without express statutory aid, have held that the girl's legal incapacity to consent to the carnal acts extends also to render her incapable of consenting to the violence, which in the absence of her consent, would by all be deemed to coustitute an indecent assault; so that by these opinions, there may be a conviction for assault with intent to commit carnal abuse. Still though by what we have seen to be the better doctrine, the law does not term this act an assault by reason of the girl's consent. * *" But in a State where there are no commonlaw crimes it is not so indictable, and in the absence of a statute to meet the case, the offender must escape. The doctrine thus announced by Bishop is well supported, in general terms, by the cases of Smith v. State, 12 Ohio St. 466; State v. Pickett, 11 Nev. 255; Regina v. Connolly, 26 U. C. Q. B. 317; Regina v. Mehegan, 7 Cox Crim. Cas. 145; Cliver v. State, 45 N. J. Law, 46; and as we believe by the decisive weight of authority. * As holding a contrary doctrine, see the cases of People v. McDonald, 9 Mich. 149; Hays v. People, 1 Hill, 351; Queen v. Beale, 1 L. R. Crown Cas. 10; State v. Johnston, 76 N. C. 209. All these last-named cases were however decided under statutes differing in some respects from ours, to which we have referred, and upon facts distinguishable from those now before us, and hence we do not regard those cases as of controlling authority in the cause. In England a statute was passed in 1880 which makes it "no defeuse to a charge or indictment for an indecent assault on a young person under the age of thirteen to prove that he or she consented to the act of indecency," and some of the States in this country have statutes more or less similar; but doubtless through inadvertence, we have no statute changing the common-law rule, as hereinabove stated, on the subject of the mere indecent abuse of children, and for that reason the doctrine announced on that subject by Bishop, as above, is applicable to the condition of affairs now existing in this State. Still in respect to the evidence on the question of an assault, the tender years, the inexperience, and the subjection of the child, will be taken into the account; and often a very small circumstance will be permitted to overcome the child's apparent consent. In the present case it was shown by the evidence that the prosecuting witness had sufficient intelligence to understand the nature of the liberties which the appellant took with her, and to realize the extent to which such liberties could be indulged without absolute physical injury. In our opinion therefore the evidence failed to show an assault upon the prosecuting witness within the meaning of the statute defining felonious assaults. Sir Walter Phillimore and Bargrane Deane, for ap pellant. Bayford, Q. C., and Middleton, for respondent, were not called upon. COTTON, L. J. The object of this application is to obtain leave to intervene and revive the suit with a view to applying to the court to make absolute the decree nisi for dissolution of the marriage between the deceased petitioner and the respondent. What is the position of the parties after the decree nisi? Neither of them can do any thing in the suit until the time comes for making the decree absolute, but the suit is not at an end, it is still pending, as we held in Ellis v. Ellis, 8 P. D. 188, and that, so far as it goes, is in favor of the application. But if the petitioner dies, has his personal representative any right to revive the suit, or to have the decree made absolute? It would be a singular thing, if after the marriage has been dissolved by death, there were power to declare it at an end on another ground. The decree nisi does not dissolve the marriage. There is no rule of court authorizing revivor in a case of this nature, and as regards authority there is none in support of it, the only case bearing on the question being Grant v. Grant, 2 Sw. & T. 522, which is against revivor. Revivor was commonly practiced in chancery, and there was also a writ of revivor at common law. Now when was there a right of revivor in chancery? When the plaintiff was seeking to enforce a right which on his death would vest in his heir-atlaw or his legal personal representative, then on his death the heir-at-law or personal representative could revive the suit. If he had died before the suit the MARRIAGE-DIVORCE-DEATH OF PETITIONER impossible that there can be any similar transmission heir or personal representative could have sued. It is The judgment is reversed, and the cause remanded for a new trial. The clerk will give the necessary notice for a return of the prisoner. AFTER DECREE NISI AND BEFORE DECREE ON the 11th of May, 1883, the petitioner obtained a decree nisi for the dissolution of his marriage on the ground of his wife's adultery. On the 27th of July, 1883, he died. The petitioner's father, who died in 1881, had directed the trustees of his will to stand possessed of 15,000l. upon trust to pay the income to the petitioner for life, and upon further trusts under which it was held by Chitty, J., that his widow was entitled for life, and subject to those interests upon trust for the husband's children as therein mentioned, and in default of children, upon such trusts as the husband should by will appoint. The petitioner died without issue, and left a will by which he appointed the 15,000l. among his surviving brothers and sisters, one of whom was his executor. In 1886 Chitty, J., decided that the respondent, who had since the petitioner's death married again, was entitled to a life interest. The petitioner's executor thereupon gave notice of motion “for an order giving him leave to intervene and revive the above suit, with a view, amongst other things, of applying to the court to make absolute the decree nisi dissolving the marriage between the petitioner and the respondent pronounced on May 11, 1883" The president refused the motion, and the executor appealed. *11 Prob. Div. 103. of interest in a suit for dissolution of marriage, for after the death of one of the parties it is impossible that any proceedings should be taken to put an end to that which has already ended. Order 17, r. 2, of the General Orders of 1883, provides that: "In case of the marriage, death or bankruptcy or devolution of estate by operation of law of any party to a cause or matter, the court or judge may, if it be deemed necessary for the complete settlement of all the questions involved, order that the husband, personal representative, personal trustee, or other successor in interest, if any, of such party to be made a party," etc. This supports what I have said, that there must be a transmissible interest-if the estate or title devolves on some one as representing the original party, the action may be revived, but there must be a devolution of the estate or title. Here the object of the suit was the dissolution of the marriage, and the case does not come within the principle on which revivor rests, for there is no one on whom the estate or interest of the deceased party devolves. It is urged that the cause of action continues, and it is true that the adultery is not done away with, but is there now any person who has any right in respect of it? In cases falling within the rule actio personalis moritur cum persona, the wrong remains, but after the death of the person injured there is no one who can complain of it or revive proceedings which had been commenced in respect of it. Then it is urged that we ought to look upon divorce proceedings as affecting the husband's personal estate, and that on that ground his personal representative has a locus standi. The case of Baker v. Baker, 5 P. D. 142; 6 id. 12, was referred to in support of that contention. In that case the husband was a lunatic, and the lords justices authorized the committee to present a petition for the dissolution of the marriage on the ground of the wife's adultery. It appears that the committee presented the petition in his own name as well as in that of the lunatic. That, in my opinion, was wrong, for all that we could do was to authorize him to present it in the name and on behalf of the lunatic. Doubts were entertained whether divorce proceedings could be maintained pending a lunacy, and it was held that they could. All that was decided in that case was that the proceedings were not criminal, but civil. What the lord justices had to consider was whether it was likely that the husband, if sane, would have condoned the offense, and it was a matter of discretion whether they would sanction the proceedings. There is nothing in the case involving a decision that there was any right which would pass to a personal representative. That the proceedings were not criminal in their nature does not involve any such conclusion, for there are many civil rights of action which do not pass to a personal representative. Then we were referred to a rule of the Divorce Court which provides that the application to make a decree nisi absolute shall be by writing signed by the solicitor of the petitioner, and filed in the registry, with an affidavit that there has been no intervention. The rule, in my opinion, only settles how the application is to be made, it does not affect the right to have the decree made absolute, but only the mode of applying to have it made absolute. It is said that there ought to be liberty to have the decree made absolute, because the making it absolute affects rights of property. It may do so in many cases, as for instance, by enabling children to get a settlement altered. The object of the suit however is not to alter rights of property, though it may have that effect, as by depriving a woman of a legacy given to her by the description of the husband's widow. Such a result however is only incidental, and it is not the object of the suit, but results incidentally from the putting an end to the marriage. It is contended that Ling v. Ling, 4 Sw. & T. 99, shows that the suit is to be considered as continuing, though the petitioner is dead, and that as the suit is continuing an application to make the decree absolute ought to be allowed. But that case does not show this. The act gave a right which did not exist til the decree had been made absolute; when once it had been made absolute the right arose. It has been the practice to intitule in the suit any application to enforce such right, and the practice is proper. Still such an application is not really a step in the suit, but an application under a statutory power given when the decree had become absolute. Here a dissolution of the marriage cannot be decreed, for it has already been dissolved by death, yet the applicant wishes to obtain a decree, in order to secure a collateral advantage which would have been obtained if the marriage had been dissolved in the husband's lifetime. I am of opinion that the litigation cannot be continued by revivor or otherwise. I should mention Order 17, r. 1, to which reference has been made. It provides that there shall be no abatement by the death of either party between the verdict and the judgment. That only inserted a provision which had been enacted by 17 Car. 2, ch. 8, with respect to certain actions. These rules do not apply to proceedings in the Divorce Court, and we cannot hold that the suit continues. The appeal must be dismissed with costs. BOWEN, L. J. A man can no more be divorced after his death than he can after his death be married or sentenced to death. Marriage is a union of husband and wife for their joint lives unless it be dissolved sooner, and the court cannot dissolve a union which has already been determined. An act of Parliament might indeed give the court power to pronounce after the death of one of the parties a decree declaring the marriage dissolved from a certain past date, but has the not done so? I think not. The act of 1857 (20 & 21 Vict., ch. 85), section 31, enabled the court to pronounce a decree declaring the marriage to be dissolved. Now, under 23 & 24 Vict., chapter 144, section 7, a decree nisi must precede the decree absolute, but though the decree is thus split into two parts its effect is the same, it is a decree dissolving the marriage. The appellant's counsel, to escape from this difficulty, tried to show that the parties, after a decree nisi, stood in a peculiar relation. It is difficult to understand in what position they considered them to be; they seemed to think that the marriage was in a sort of suspended existence, and that the parties were neither married nor divorced, but were in auch a peculiar relation that in some case, the name of which was not mentioned, it was held that intercourse between them in the interval might constitute adultery. I do not know what the case may be (Laxton v. Laxton, 30 L. J. [P. M. & A.]208), but the idea seems to me worthy of Tristram Shandy. Some observations have been made, one by Lord Cairns, to the effect that the lis comes to an end on the pronouncing of the decree nisi, but in Norman v. Villars, 2 Ex. D. 359, the subject was fully gone into, and it was settled that a decree nisi effects no change in the status of the wife. If a decree nisi is made, and the husband dies before it is made absolute, he dies while he is still at law a husband, and his wife becomes his widow. After this, how can a decree be made which would displace a dissolution of the marriage by death, and untie a knot that no longer exists. How can a woman, once a widow, be converted into a divorcee, unless there is some enactment enabling the court to make such a retrospective order? The appellant's counsel tried to show that the lis still continues, and they referred to the 22 & 23 Vict., chapter 61, section 5, which enables the court after a final decree to inquire into settlements and deal with the settled property. But to assume that the lis still exists because the Legislature has given this power is begging the question, for it is consistent with the language of the enactment to hold it to mean that even though the suit is at an end, the court shall have power to vary settlements, and that seems to me to be the true view. The Legislature is giving, over and above relief in the suit, a relief outside the suit-a relief which is the creature of statute. It is said that this divorce proceeding affects the personal estate of the husband, and that therefore his executor has an interest in it. No doubt it may affect his personal property, every change of status may affect personal property, but that is only consequential. The object of a suit for dissolution of a marriage is not to affect property, but to change the status, and it cannot be looked upon as a suit relating purely to property. The appellants referred to Baker v. Baker, 5 P. D. 142, where it appears that the lord justices gave leave to a committee to take proceedings for a dissolution of marriage on behalf of a lunatic, and they relied on this as showing that other persons than a husband and wife may carry on divorce proceedings. But that case was entirely different from a proceeding by an executor. It was a proceeding to dissolve an existing marriage, and as the lunatic could not himself take proceedings, it was reasonable to allow them to be taken in his name and on his behalf by his committee, but how can an executor ask to dissolve a marriage which no longer exists? An executor does not act for a dead man, or in his name, but for the estate of the dead man. It is contrary to the idea of a divorce that it should be sought after the death of one of the parties. In order to prevent waste of time arising from the common-law doctrine of abatement, it was no doubt enacted by 17 Car. 2, ch. 8, that all actions, real, per |