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Maria Theresa, in 1753, issed an ordinance to pro. A bill in equity to redeem was brought against the mortgagee,
vide for the uniformity of the law in all the provinces who had been in possession six and one half years.
of the Austrian Empire. She appointed a commis. Held, that the lapse of time did not bar the suit.
sion to digest the existing law; the work of the com-

BILL
mission, due to Prof. Azzoni, appeared in 1767 in eight

in equity to redeem a mortgage and for an ac

count.
volumes; but it was not satisfactory, so she author-
ized Counsellor Harten to construct a Code on a dif. Edward D. Bassett, for complainants.
ferent basis.
The conditions she prescribed were:

Geo. B. Barrows, Chas. F. Page and Franklin P.
1. To abstain from doctrinal development.

Owen, for respondents.
2. To have in view contestations of the most fre- DURFEE, C. J. The bill states that on October 23,
quent occurrence.

1873, Walter J. Reynolds, being the owner of a lot in
3. To be clear in expression.

Providence, mortgaged it for $800 to Stephen H. 4. To be governed by natural equity, rather than the Williams; that subsequently the lot passed by mesne principles of the Roman law.

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.

Pierce, to-wit, one for $3,250 and one for $500, subject The first part of the Code was published in 1786 un- to the mortgage for $3,250; that the mortgage for der Joseph II; it was submitted to the universities, | $3,250, though taken solely in Pierce's name, belonged and the courts of justice, and then put in force July equally to him and the complainaut, Harriet Hall; 7, 1810.

that Pierce assigned the mortgage for $3,250 to the
There are different opinions concerning the suc- defendant, Charles A. Westcott, who thereupon,
cess of the French and Prussian Codes. It can be January 23, 1875, gave the complaivaut Harriet Hall, a
safely affirmed however that they were vast improve- writing in which he declared that he held said mort-
ments upou the then existing condition of the law. gage as to one-half in trust for ber; that said

Austin thinks that the absence of definitions in the Pierce subsequently assigued said mortgage for
French Code is one of its defects. On the other hand $500 and his interest in said mortgage for $3,250
the Supreme Court of Louisiana says, “that defini- to said Harriet, and that said mortgage for $500
tions are at best uusafe guides in the administra- | contained a power of sale under which, in January,
tion of justice, and their frequent recurrence in the 1882, said Harriet duly sold the estate, buying it her-
Louisiana Code is the greatest defect in that body of self under notice as authorized by statute. The bill
laws." Egerton v. Third Municipality, i La. Ann.437. The alleges that the defendant is in pussession and con-
opinion almost universally accepted as correct, is that tains other allegations. It asks for an account and
the primary object of Code should be order, rather | for leave to redeem. The defendaut sets up several
than reform, a scientifically arranged exposition, and defenses.
re-expression of existing law, clear, simple, and free [Omitting others.)
from doctrinal development.

The third defense is that the mortgaged lot was sold
It is believed that under such a Code the law will for the nonpayment of taxes and bought by and con-
lose its "ipelegantia," a term used by Gaius, to express veged to the defendant. This raises the question
want of consistency and harmony, and may be made whether a mortgagee or his assiguee, out of posses-
"cognoscible" at least to the legal profession.

sion, can become a purchaser at a tax sale with the The history of codification teaches that the task of same effect as against the mortgagor and other mortpreparing a Code of laws is difficult, that its proper gagees as if he were a strauger to the estate. There execution is a work of years, to be intrusted not to a is some conflict of authority on this point. All the deciduous committee of fugitive legislators, but to a cases agree that there are persous who stand in such permanent commission of the most enlightened and relations to the estate they cannot purchase as if they cultivated jurists, whose project, prior to adoption, were strangers. No person whose duty it is to pay should be subjected to rigid and universal critio- the tax can be permitted to purchase at a sale for its ism.

noupayment and acquire a good title as against others If one influential State in the Union should lead the who are interested in the estate, since to permit him way, and achieve even partial success, its example to do so would be to permit him to profit by his own would be imitated by others, and at no distant day, default. Under this rule mortgagors, mortgagees in the law throughout the Union would become homo- possession, life tonauts and tenants obligated by cougeneous, and no congressional legislation would be tract to pay the taxes are incapacitated to become needed to establish uniformity on particular sub- purchasers. The iucapacity has likewise beeu beld to jects within the competency of the Federal governo extend to tenants in common, for if the estate is sold ment.

for taxes to one of the tenants, it is sold for his default
On the other hand a demand would arise for au as well as for the default of his cotepants. Page v. Web-
amendment to the Constitution, so as to adopt the ster, 8 Mich. 263; Butler v. Porter, 13 id. 292; Cooley v.
courts of the United States to the administration of Waterman, 16 id. 366; Cooley Tux. 346, 347. So a per-
justice, under a system, in which the distinction be- son who occupies a fiduciary relation as regards the
tween law and equity had lost its significance.

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,
MORTGAGE - MORTGAGEE BUYING PREMISES or at least presuppose, a still broader doctrine, which
AT TAX SALE.

may be stated thus, namely, that a purchaser, who has

an interest in the estate, such as would entitle him to RHODE ISLAND SUPREME COURT,

redeem it if sold to another, will be presumed to have JULY 24, 1886.

purchased it for the protection of that interest, or to

save it from sacrifice, and will be required to hold it, HALL V. WESTCOTT.

even after the statutory period for redemption has
A mortgagee, whether in possession or out of possession, can- expired, simply as security for his reimbursement.

not purchase the mortgaged estate at a tax sale, and hold We find this doctrine nowhere more clearly asserted
it under the tax title as against the mortgagor or other than in Fair v. Brown, 40 Iowa, 209. The defendant
mortgagees.

there was interested in the estate by judgment lien

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and as a second mortgagee. He bought certificates of 31 id. 359, 379; Chickering v. Failes, 26 Ill. 507; Mc-
salo for taxes aud subsequently took the tax deed. The Laughlin v. Green, 48 Miss. 175. In California it is
court held that the prior mortgage was not defeated. held that a person who is under any obligation, either
“The land,” say the court, “ is a common fund for the moral or legal, to pay the taxes, cannot become a
payment of the plaintiff's, i. e., the prior mortgagee's, purchaser. Moss v. Shear, 25 Cal. 38; Christy v. Fisher,
mortgage and the defendant's liens. Defendant was 58 id. 256.
authorized to redeem from the tax sale. Equity will Other cases adopt a narrower view and maintain
not permit him to acquire the title for an inconsider- that any person can become a purchaser who is not
able sum when he was authorized to remove the tri- under any legal duty to pay the taxes. Williams v.
fling incumbrance by redemption. Though not bound Townsend, 31 N. Y. 411; Waterson V. Devoe, 18 Kans.
to pay the tax, yet it was his right to do so to protect 223; Bettison v. Budd, 17 Ark. 546; Ferguson v. Etter,
his heirs. He cannot obtain that protection by pur- 21 id. 160.
suing a course that will deprive the mortgagee of his Our conclusion is that a mortgagee either in posses-
security and leave the mortgagor to sustain the weight sion or out of possession is not entitled to purchase
of the liens, which are personal judgments, after being the estate at a tax sale and set up the tax title as
deprived of his property by tax title." See also Por- against the mortgagor or the other mortgagees. They
ter v. Laperty, 33 Iowa, 254; Stears v. Hollenbeck, 38 id. all have a common interest in the preservation of the
550,

estate, and therefore if either of them purchases the
In Middletown Savings Bank v. Bacharach, 46 Conn. estate at a tax sale, it should be presumed in favor of
571, the defendant having had an undivided eighth of the others that he made the purchase for the common
an estate subject to a mortgage set out to him under protection.
an executiou, purchased the estate at a sale for taxes The fourth defense is that the complainants have
assessed before he became interested in it, and the been guilty of laches in not sooner bringing the suit or
court held that he could not set up the tax title to de- pressing their claim. We do not think there have
feat the mortgage, he being entitled to redeem the been laches sufficient to bar the suit. The defendant
mortgage, which yet he could not do, if the mort- had only been in possession of the mortgaged prem-
gagee had paid the taxes, without reimbursing him. ises about six and one-half years wheu the suit was
The court also said that the mortgagee was similarly begun.
incapacitated, because he could pay the tax and add We think a case is shown which entitles the com-
the amount of it to the mortgage debt.

plainants to relief. 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 pur

CRIMINAL LAW – ASSAULT WITH INTENT TO chases the estate at a tax sale the purchase may be

COMMIT RAPE-WHAT CONSTITUTES treated as payment. “It is as just and as politic

EVIDENCE. here," say the court, as it is in the case of tenants in common, to hold that the purchase is a payment of SUPREME COURT OF INDIANA, JUNE 25, 1886. the tax." In the later case of Maxfield v. Willey, 46 Mich. 252,

STEPHENS V. STATE. the court affirms the doctrine. “When the mortga

Under an indictment for an assault with intent to commit a gee," says the court, “ instead of making payment of

rape upon a female child under twelve years of age, the the taxes, makes a purchase of the land at tax sale, we

prosecution must prove both the intention and an assault have no doubt of the right of the mortgagor to have

in pursuance of such intention; and after certain fathe purchase treated as a payment, and to compel the

miliarities consented to by the girl, the attempt is cancelment of the certificate or deed on refunding the

abandoned on her refusal to allow the intercourse, there amount paid with interest." The opinions in these

can be no conviction. cases were delivered by Judge Cooley, who in the preparation of his book on Taxation had occasion to make

PPEAL from Tippecanoe Circuit Court. the subject a special study. The most recent case which we have met with is

R. P. De Hart and Coffroth & Stuart, for appelWoodbury v. Swan, 59, N. H. 22, in which the Supreme

lant. Court of New Hampshire decided that the holder of a

F. T. Hord, Atty.-Gen., for appellee. mortgage cannot defeat a prior mortgage by acquiring a tax title. The court rest their decision ou the fol- NIBLACK, J. This was a prosecution against the lowing reasons, as declared by Bingham, J., in deliv- appellant, David Stephens, upon an indictment conering the opinion of the court: "Mortgagor and mort- taining two counts. The first count charged the apgagee have a unity of legal interest in the protection pellaut with having made an attempt to commit a of their titles against sale for the nou payment of violent injury upon one Annie Myers, a female child taxes, and against outstanding tax titles; and it is not under twelve years of age, with intent to feloniously equitable that either of them should act adversely to ravish and carnally kuow her, the said Annie. The the other in the acquisition and use of such titles. second count charged substantially the same offense, Therefore the mortgage contract comprises au implied giving only the details of the alleged transaction with agreement, that while either party may buy a tax title greater particularity. A jury found the appellant for the preservation of his right in the mortgaged guilty as charged, and he was adjudged to pay a fine property, neither of them will buy a tax title for the of $25, and to be imprisoned in the State's prison for extinguishment of the title, in the maintenance of the term of ten years. which they as well as partners and tenants in common The evidence tended to show that Annie Myers, the are in law jointly concerned. The common interest of prosecuting witness, was a female child between these parties in the mortgaged property creates a rela- eleven and twelve years of age, and was a good deal tion of trust and confidence."

upon the street, voluntarily soliciting contributions Other cases may be cited which support the same for the support of herself and her mother; that she view, though not always for the same reasons. did not know the appellant by name, yet she had freMoore v. Titmun, 44 III. 367; Harkreader v. Clay- quently seen him upon the streets of the city of La ton, 56 Miss. 383; Haskell v. Putnam, 42 Me. 244; Fayette, and bad sometimes spoken to him; that at Bassett v. Welch, 22 Wis. 175; Whitney v. Gunderson, the foot of Brown street, in that city, there is a bridge

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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 pickel if she would go; that she at first declining, he the second time urged aud 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 bis 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

too from the evidence was that be desired to have such sexual intercourse, aud probably would have consummated his desire if circumstances bad 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 Iud. 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, SS 2089, 733.

30854

prossing

his private parts against her body; that in "Applying the law, as stated, to so much of the evi

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, be 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 vot more than twentyone years, nor less tban 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, sball 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 185%, 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, S 237. In giving a construction to that enactment it has been uniformly held that we have no longer any common-law offeuses 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. Slate, 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 convictiou of the offense with which he was charged cannot be sustained.

Both counts of the iudictment, 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 evi. dence had relation, the appellant had the intention of committing a rape upon the prosecuting witness, avd that be, at the same time, made an assault upon her in pursuance of that intention. It is conceded that if the appellant bad persisted, aud had succeeded in har. ing sexual intercourse with the prosecuting witness, he would have been guilty of rape. The fair inference

dence 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 defend. ant 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 assent. ing 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 49, 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 been 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 anuoupced by Bishop is well supported, iu 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; aud 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 cages were however decided uuder statutes differing in some

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respects from ours, to which we have referred, and Sir Walter Phillimore and Bargrane Deane, for ap-
upon facts distinguishable from those now before us, pellaut.
and hence we do not regard those cases as of controll-
ing authority in the cause.

Bayford, Q. C., and Middleton, for respondent, were

not called upon. In Eugland a statute was passed in 1880 which makes it “no deteuse to a charge or indictment for an Cotton, L. J. The object of this application is to indecent assault on a young person under the age of obtain leave to intervene and revive the suit with a thirteen to prove that he or she consented to the act

view to applying to the court to make absolute the of indecency," and some of the States in this country decree nisi for dissolution of the marriage between have statutes more or less similar; but doubtless the deceased petitioner and the respondent. What is through inadvertence, we have no statute changing the position of the parties after the decree nisi? the common-law rule, as hereinabove stated, on the Neither of them can do any thing in the suit until the subject of the mere indecent abuse of children, and

time comes for making the decree absolute, but the for that reason the doctrine announced on that sub- suit is not at an end, it is still pending, as we held in ject by Bishop, as above, is applicable to the condi- Ellis v. Ellis, 8 P. D. 188, and that, so far as it goes, is tion of affairs now existing in this State. Still in re- | in favor of the application. But if the petitioner dies, spect to the evidence on the question of an assault,

has his personal representative any right to revive the the tender years, the inexperience, and the subjection

suit, or to have the decree made absolute? It would of the child, will be taken into the accouut; and often be a singular thing, if after the marriage has been disa very small circumstance will be permitted to over

solved by death, there were power to declare it at an come the child's apparent consent.

end on another ground. The decree nisi does not disIn the present case it was shown by the evidence

solve the marriage. that the prosecuting witness had sufficient intelligence There is no rule of court authorizing revivor in a to understand the nature of the liberties which the

case of this nature, and as regards authority there is appellant took with her, and to realize the extent to

uone in support of it, the only case bearing on the which such liberties could be indulged without abso

question being Grant v. Grant, 2 Sw. & T. 522, which is lute physical injury. In our opinion therefore the

agaiust revivor. Revivor was commonly practiced in evidence failed to show an assault upon the prosecut

chancery, and there was also a writ of revivor at coming witness within the meaning of the statute defining

mon law. Now when was there a right of revivor in felonious assaults.

chancery? When the plaintiff was seeking to enforce The judgment is reversed, aud th cause remanded

a right which on his death would vest in his heir-atfor a new trial. The clerk will give the necessary no

law or his legal personal representative, then on his tice for a return of the prisoner.

death the heir-at-law or personal representative could
revive the suit. If he had died before the suit the

heir or personal representative could have sued. It is MARRIAGE-DIVORCE-DEATH OF PETITIONER

impossible that there can be any similar transmission AFTER DECREE NISI AND BEFORE DECREE

of interest in a suit for dissolution of marriage, for ABSOLUTE REVIVOR.

after the death of one of the parties it is impossible

that any proceedings should be taken to put an end to ENGLISH COURT OF APPEAL, MARCH 24, 1886.

that which has already ended.

Order 17, r. 2, of the General Orders of 1883, provides
STANHOPE V. STANHOPE.*

that: “In case of the marriage, death or bankruptcy A husband who obtained a decree nisi for dissolution of his

or devolution of estate by operation of law of any marriage died before the time for making it absolute had

party to a cause or matter, the court or judge may, if arrived. Held, that the personal representative of the it be deemed necessary for the complete settlement of husband could not revive the suit for the purpose of apply

all the questions involved, order that the busband, pering to make the decree absolute.

sonal representative, personal trustee, or other succesIN

sor in interest, if any, of such party to be made a decree nisi for the dissolution of his marriage on

party,'' etc.

This supports what I have said, that there must be a the ground wf his wife's adultery. On the 27th of

transmissible interest if the estate or title devolves July, 1883, he died.

on some one as representing the original party, the acThe petitioner's father, who died in 1881, had di

tion may be revived, but there must be a devolution rected the trustees of his will to stand possessed of

of the estate or title. Here the object of the suit was 15,0001. upon trust to pay the income to the petitioner

the dissolution of the marriage, and the case does not for life, and upon further trusts under which it was held by Chitty, J., that his widow was entitled for

come within the principle on which revivur rests, for

there is no one on whom the estate or interest of the life, and subject to those interests upon trust for the

deceased party devolves. busbaud's children as therein mentioned, and in de

It is urged that the cause

of action continues, and it is true that the adultery is fault of children, upon such trusts as the husband

not done away with, but is there now any person who should by will appoint. The petitioner died without issue, and left a will by

has any right in respect of it? In cases falling within which he appointed the 15,0001. among his surviving

the rule actio personalis moritur cum persona, the brotbers and sisters, one of whom was his executor.

wrong remains, but after the death of the person inIn 1886 Chitty, J., decided that the respondent, who

jured there is no one who can complain of it or revive had since the petitioner's death married again, was

proceedings which bad been commenced in respect of entitled to a life interest. The petitioner's executor

it. Then it is urged that we ought to look upon di. thereu pon gave notice of motion " for an order giving estate, and that on that ground his personal represen

vorce proceedings as affecting the husband's personal him leave to intervene and revive the above suit, with a view, amongst other things, of applying to the court

tative has a locus standi. to make absolute the decree nisi dissolving the mar

The case of Baker v. Baker, 5 P. D. 142; 6 id. 12, was riage between the petitioner and the respondent pro

referred to in support of that coutention. In tbat case nounced on May 11, 1883" The president refused the

the husband was a lunatic, and the lords justices aumotion, and the executor appealed.

thorized the committee to present a petition for the

dissolution of the marriage on the ground of the wife's *11 Prob. Div. 103.

adultery. It appears that the committee presented

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the petition in his owu pame as well as in that of the date, but has the act done so? I think not. The act lunatic. That, in my opinion, was wrong, for all that of 1857 (20 & 21 Vict., ch. 85), section 31, euabled the we could do was to authorize him to present it in the court to pronounce a decree declaring the marriage to name and on behalf of the lunatio. Doubts were en- be dissolved. Now, under 23 & 24 Vict., obapter 144, tertained whether divorce proceedings could be main- section 7, a decree nisi must precede the decree absotained pending a lunacy, and it was held that they lute, but tbough the decree is thus split into two could. All that was decided iu that case was that the parts its effect is the same, it is a decree dissolving the proceedings were not criminal, but civil. What the marriage. The appellant's counsel, to escape from lord justices had to consider was whether it was likely this difficulty, tried to show that the parties, after a that the husband, if sane, would have condoned the decree nisi, stood in a peculiar relation. It is difficult offense, and it was a matter of discretion whether they to understand in wbat position they considered them would sanction the proceedings. There is nothing in to be; they seemed to think that the marriage was in the case involving a decision that there was any right a sort of suspended existence, and that the parties which would pass to a personal representative. That were ueither married nor divorced, but were in auch the proceedings were not criminal in their nature does a peculiar relation that in some case, the name of not involve any such conclusion, for there are many which was not mentioned, it was held that intercourse civil rights of action which do not pass to a personal between them in the interval might constitute adulrepresentative.

tery, I do not know what the case may be (Laxton v. Then we were referred to a rule of the Divorce Court Laxton, 30 L. J. [P. M. & A.]208), but the idea seems which provides that the application to make a decree to me worthy of Tristram Shaudy. Some observanisi absolute shall be by writing signed by the solici- tions bare been made, one by Lord Cairns, to the eftor of the petitioner, and filed in the registry, with an fect that the lis comes to an eud on the pronouncing affidavit that there has been no intervention. The rule, of the decree nisi, but in Norman v. Villars, 2 Ex. D. in my opinion, only settles how the application is to 359, the subject was fully gone into, and it was settled be made, it does not affect the right to have the decree that a decree nisi effects no change in the status of the made absolute, but only the mode of applying to have wife. If a decree nisi is made, and the husband dies it made absolute. It is said that there ought to be before it is made absolute, he dies while he is still at liberty to bave the decreo made absolute, because the law a husband, and his wife becomes his widow. After making it absolute affects rights of property. It may this, how can a decree be made which would displace do so in many cases, as for instance, by enabling a dissolution of the marriage by death, and untie a children to get a settlement altered. The object of knot that no longer exists. How can a woman, once a the suit however is not to alter rights of property, widow, be converted into a divorcee, unless there is though it may have that effect, as by depriving a some enactment enabling the court to make such a woman of a legacy given to her by the description of retrospective order? the husband's widow. Such a result however is only The appellant's counsel tried to show that the lis incidental, and it is not the object of the suit, but re- still continues, and they referred to the 22 & 23 Vict., Bults incidentally from the putting an end to the mar- chapter 01, section 5, which enables the court after a riage.

final decree to inquire into settlements and deal with It is contended that Ling v.Ling, 4 Sw. & T. 99, shows the settled property. But to assume that the lis still that the suit is to be considered as continuing, though exists because the Legislature has given this power is the petitioner is dead, and that as the suit is continu- begging the question, for it is consistent with the laning an application to make the decree absoluto ought guage of the enactment to hold it to mean that ever to be allowed. But that case does not show this. The though the suit is at an end, the court shall bave power act gave a right which did not exist til the decree had to vary settlements, and that seems to me to be the been made absolute; when once it had been made ab- true view. The Legislature is giving, over and above solute the right arose.

relief in the suit, a relief outside the suit-& relief It has been tbe practice to intitule in the suit any which is the creature of statute. application to enforce such right, and the practice is It is said that this divorce proceeding affects the perproper. Still such an application is not really a step sonal estate of the husband, and that therefore bis in the suit, but an application under a statutory power executor has an interest in it. No doubt it may affect given when the decree had become absolute. Here a his personal property, every change of status may afdissolution of the marriage cannot be decreed, for it fect personal property, but that is ouly consequential. has already been dissolved by death, yet the applicant The object of a suit for dissolution of a marriage is wishes to obtain a decree, in order to secure a collat- not to affect property, but to change the status, and it eral advantage which would bare been obtained if the cannot be looked upon as a suit relating purely to marriage had been dissolved in the husband's life- property. time. I am of opinion that the litigation cannot be The appellants referred to Baker v. Baker, 5 P. D. continued by revivor or otherwise. I should mention 142, where it appears that the lord justices gave leave Order 17, r. 1, to which reference has been made. It to a committee to take proceediugs for a dissolution provides that there shall be no abatement by the death of marriage on behalf of a lunatic, and they relied on of either party between the verdict and the judgment. this as showing that other persons than a husband and That only inserted a provision which bad been en- wife may carry on divorce proceedings. But that case acted by 17 Car. 2, ch. 8, with respect to certain ac- was entirely different from a proceeding by an executions. These rules do not apply to proceedings in the tor. It was a proceeding to dissolve an existing marDivorce Court, and we canuot hold that the suit con- riage, and as the lunatic could not himself take protinues. The appeal must be dismissed with costs. ceedings, it was reasonable to allow them to be taken

BOWEN, L. J. A man can 110 more be divorced in his name and on his behalf by his committee, but after his death than he can after his death be married how can an executor ask to dissolve a marriage which or sentenced to death. Marriage is a union of hus- no longer exists? An executor does not act for a dead band and wife for their joint lives unless it be dis- man, or in his name, but for the estate of the dead

and the court cannot dissolve a union man. It is contrary to the idea of a divorce that it which has already been determined. An act of Par- should be sought after the death of one of the parties. liament might indeed give the court power to pro- In order to prevent waste of time arising from the nounce after the death of one of the parties a decree common-law doctrine of abatement, it was no doubt declaring the marriage dissolved from a certain past ( enacted by 17 Car. 2. ch. 8, that all actions, real, per

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