UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 ■■::^m^^- 
 
 A Summary o/ 
 
 ®I|p ffiato of ithorrf 
 
 THE HON. T. G. MATHERS 
 
 Chief Jus/ice of 
 
 Thi-: Court of King's Bbnch 
 
 Manitoba 
 
 PuhUihci f>y tind under the author 
 
 H R iHAKKEY, Hni.- 
 A'e/)rrt,
 
 PREFACE 
 
 During the past winter a series of lectures upon 
 legal topics was delivered by myself and others to 
 the members of the Junior Bar and Law Students. 
 One of these lectures by me was on the subject of 
 Divorce. The lecture was prepared without any 
 thought of its subsequent publication in any more 
 enduring form than typewritten sheets. Those by 
 whom the lectures were arranged, however, ex- 
 pressed a desire to have it printed and I have assent- 
 ed to that being done. 
 
 A summary of such of the Imperial Statutes, 
 1857 to 1870, relating to Divorce and Matrimonial 
 Causes, as are in force in the four Western Provinces 
 (omitting only such sections as are manifestly in- 
 applicable) is printed as an appendix. 
 
 T. G. MATHERS. 
 Winnipeg, 
 23rd February, 1920. 
 
 q^q/\^^

 
 DIVORCE 
 
 Lecture delivered by Chief Justice Mathers to the Junior Bar. — 
 
 February 13th, 1920. 
 
 Our recently discovered jurisdiction in Divorce found us with 
 a knowledge of the subject that was extremely nebulous. For 
 that reason I have thought it advisable to devote at least a portion of 
 this lecture to giving a brief historical review. 
 
 Prior to the Reformation in the time of Henry VIII, mar- 
 riage in England as well as in other Catholic countries, was con- 
 sidered a sacrament which no human power could dissolve except 
 perhaps the Pope as Christ's Vice-Regent on earth. 
 
 In McQueen on Husband and Wife, the law is thus stated at 
 164: 
 
 "To set aside a marriage in pre-Reformation times proof must 
 have been that the contract itself was invalid. Conjugal infidelity 
 furnished a ground for a separation, but nothing short of death 
 could release the nuptial bond. The course, therefore, was to assert 
 some obstructing antecedent impediment as a previous betroth- 
 ment, undue consanguinity or affinity, physical incompetence or 
 mental incapacity. Any one of these points established the 
 marriage was thereupon declared nidi ab initio. But if originally 
 valid it was under all circumstances positively and absolutely 
 indissoluble." 
 
 To overcome the hardship which in many cases arose from 
 the doctrine of indissolubility, the Church Courts extended the im- 
 pediments of consanguinity and affinity so as to embrace not only 
 the seventh cousin but also held that affinity might be established 
 by mere sexual commerce. It thus had become no very difficult 
 matter to have a marriage contract declared invalid because of the 
 existence at the time of its celebration of one or other of the so- 
 called impediments. 
 
 After Henry VIII had broken with Rome, an Act was passed, 
 32 Hen. 8, c. 38, which, in effect, limited the prohibited degrees to 
 those specified in the 18th Chapter of Leviticus. This statute, with 
 some modifications made in 2 & 3 Ed. 6, c. 23, and 5 & 6 Wm. 4, 
 c. 54, is still the law. 
 
 If no such impediment could be discovered by the ingenuity of 
 the canonist lawyers the Spiritual Courts had still the power to de- 
 cree a divorce a mensa et thoro on the ground of adultery by one 
 of the married pair. Such a decree did not in terms dissolve the
 
 marriage tie because that tie could not be loosed by any human 
 agency. All it did was to sentence'the parties to a separation from 
 bed and board. 
 
 After the Reformation opinion seems to have undergone a 
 change as to the legal effect of such a decree. The doctrine of the 
 indissolubility of marriage was now to a large extent abandoned 
 and when a decree a mensa et thoro was obtained for adultery it 
 soon came to be regarded as in legal effect, though not in form, a 
 dissolution of the marriage so that the parties were at liberty to 
 marry again. This may be taken to have been the view of the law 
 by the church and was no doubt accepted and acted upon by the 
 laity. That such was the opinion of the church is evidenced by the 
 fact that in 1597 at a church convention a constitution was solemn- 
 ly adopted, the 105th Canon of which charges the use of great 
 circumspection in "Causes wherein matrimony is required to be 
 dissolved or annulled," and the 107th of which requires that where 
 a divorce a vieiisa et thoro is granted a bond shall be entered into 
 not to marry again during the life of one of the parties. 
 
 This continued to be the view taken of the legal effect of a 
 decree a mensa et thoro for adultery from the Reformation until 
 towards the end of the reign of Elizabeth. Lord Brougham says 
 in Warrender v. Warrender, 2 CI. & F. at 553, that "Between the 
 Reformation and the latter end of Queen Elizabeth's reign it was 
 held that the consistorial jurisdiction extended to dissolve marriage 
 a vinculo for adultery." And in 3 Salkeld, 138, it is stated that "A 
 divorce for adultery was anciently a vinculo matrimonii and there- 
 fore in the beginning of the reign of Queen Elizabeth the opinion 
 of the Church of England was that after a divorce for adultery the 
 form of decree pronounced was not changed ; it still continued to 
 be in form one for separation from bed and board." 
 
 About the end of the Queen's reign, doubt was cast upon the 
 legal effect of such a divorce by the case of Rye v. Foljambe, tried 
 in the Star Chamber in 1602, in the 44th year of Elizabeth's reign. 
 This case is reported in the collection of cases made by Sir F. Moore 
 at 942 and 72 Eng. Rep. at 838. It is also referred to in 3 Salkeld 
 138. 
 
 Foljambe having been divorced for adultery married a second 
 time Sarah Page, the daughter of the plaintiff, his first wife still 
 living, and it was held that the second marriage was void because 
 the first divorce was but a mensa et thoro and not a vinculo matri- 
 monii. See McQueen, Husband & Wife, 170; Bishop on Divorce, 
 Pars. 661, 775. 
 
 The decision in Rye v. Foljambe was followed in all subsequent 
 proceedings for divorce in the Spiritual Courts — the only Courts 
 having jurisdiction in matrimonial causes — with the result that 
 from that time until the enactment of the Act respecting Divorce
 
 and Matrimonial Causes in 1857 the only kind of a divorce which 
 could be obtained by a judicial proceeding was a separation from 
 bed and board. The sentence was in form exactly the same as that 
 pronounced prior to Rije v. Foljambe, but its legal effect was held 
 to be different. Before that case a sentence a menso et thoro for 
 adultery was treated as a dissolution of the marriage, leaving the 
 parties free to marry again. After that case such a sentence was 
 regarded in legal effect as if it was in form merely a separation from 
 bed and board leaving the matrimonial tie intact. The church was 
 averse to the re-marriage of either of the parties who had been sep- 
 arated by a divorce a mensa et thoro during the lifetime of the 
 other and for the purpose of restraining the practice, an Ecclesias- 
 tical Canon was adopted in 1597, five years before Rye v. Foljambe, 
 requiring the party seeking such a divorce to enter into a bond not 
 to marry again. 
 
 The practical effect of Rye v. Foljambe was to re-establish in 
 so far as the Ecclesiastical Courts were concerned, the indissolu- 
 bility of the marriage tie, although the decision does not seem to 
 have been at once acquiesced in by the laity. 
 
 It, however, effectually closed the door of the Courts to those 
 who desired to have their matrimonial bonds loosed, and forced 
 them to seek relief in another direction. The direction in which re- 
 lief was sought was by a bill in Parliament. The first recorded in- 
 stance of such an Act is in 1666. In that year Lord de Roos, who 
 had obtained an Ecclesiastical decree a mensa et thoro against his 
 wife for adultery, and had entered into a bond not to marry again 
 during her lifetime, procured the passage of an Act entitled "An 
 Act for Lord Roos to marry again." The object of the Act was not 
 to dissolve the marriage tie but merely to relieve Lord de Roos from 
 the bond he had entered into not to marry again. Parliament 
 seems to have regarded the marriage as already dissolved by the 
 decree and the bond as the only obstacle in the way, showing that 
 Parliamentary opinion was not in accord with the doctrine of Rye 
 V. Foljambe. 
 
 The principles which should guide Parliament in dealing with 
 divorce bills and the practice to be followed was not, however, set- 
 tled until 1701. The practice then established appeared to require 
 the applicant, if the husband, to prove that he had recovered a 
 judgment in an action in the Common Law Courts for criminal con- 
 versation against the adulterer followed by a divorce a mensa et 
 thoro against his wife for adultery in the Spiritual Courts. Upon 
 proof of these facts parliament passed an Act dissolving the mar- 
 riage. 
 
 An interesting account of these early parliamentary divorces 
 will be found in McQueen on Husband and Wife, 172, et seq. and 1 
 Bishop on Divorce, par. 660 et seq. 
 
 732746
 
 The expense of obtaining a parliamentary divorce was such 
 that that method of release was open only to the well-to-do, while 
 to all others relief was denied. The situation as it existed for up- 
 wards of one hundred and fifty years before the Divorce Act of 
 1857 is stated with admirable irony by Mr. Justice Maule in sen- 
 tencing a poor man who had been convicted of bigamy during thia 
 period. The prisoner's wife had robbed him and had run away 
 with another, with whom she was living, and in these circumstances 
 the prisoner had married again. 
 
 "You should" (said Mr. Justice Maule), "have brought an ac- 
 tion and obtained damages which the other side would probably not 
 have been able to pay and you would have had to pay your own 
 costs, perhaps an hundred or an hundred and fifty pounds. You 
 .should then have gone to the Ecclesiastical Courts and obtained a 
 divorce a meusa et thoro and then to the House of Lords where, 
 having proved that these preliminaries had been complied with, you 
 would have been entitled to marry again. The expense might 
 amount to five or six hundred or a thousand pounds. You say you 
 are a poor man. But I must tell you that there is not one law for 
 the rich and another for the poor." 
 
 In 1857 a Divorce Act was passed creating a new Court called 
 the Court of Divorce and Matrimonial Causes and to it was trans- 
 ferred all the jurisdiction in matrimonial matters theretofore exer- 
 cised by the Ecclesiastical Courts. This Act was followed in 1858, 
 1859, 1860, 1862, 1864, 1866 and 1868 by other Acts relating to the 
 same subject. 
 
 The general eflfect of these several Acts was to vest in the new 
 Court the power to grant not only the relief which might thereto- 
 fore have been obtained in the Ecclesiastical Courts or by Act of 
 Parliament, but also in the Common Law Courts by an action of 
 criminal conversation. 
 
 The Act of 1857 and those which followed it are confined in 
 their operation to England and Wales alone. They have no extra- 
 territorial operation, and are not in force in any Province of Can- 
 ada except in those Provinces where they have been brought into 
 force by colonial legislation. 
 
 Prior to Confederation, three Provinces now included in the 
 Dominion of Canada had created Divorce Courts and enacted divorce 
 legislation. In New Brunswick in 1791, an Act of the Legislature 
 (31 Geo. Ill, c. 5) created the Governor-in-Council a Court with 
 power to dissolve or annul marriages for impotence, adultery or 
 consanguinity within the degrees prohibited by 32 Hen. VIII, c! 
 38. In 1860 this jurisdiction was transferred to a Court called 
 "The Court of Divorce and Matrimonial Causes." 
 
 In Prince Edward Island an Act passed in 1885 also created 
 the Governor-in-Council, a Court with such powers as those con- 
 feri-ed on the Governor-in-Council and subsequently on the Divorce 
 Court in New Brunswick.
 
 Nova Scotia also before Confederation had its own Divorce 
 Court with practically the same powers as those conferred upon the 
 like Courts of her sister Provinces. 
 
 British Columbia did not enter Confederation until 1871. In 
 1867 by an Ordinance of the Legislative Council of the then colony 
 the civil and criminal laws of England as the same existed on the 
 19th day of November, 1858, were made the laws of that colony. 
 The Divorce and Matrimonial Causes Act had on the last mentioned 
 date become part of the civil law of England. In 1877, in M. false- 
 ly called S. v. S., 1 B.C. 25, by a majority decision of the Full Court 
 of British Columbia, it w^as held that by virtue of the Ordinance re- 
 ferred to, the Supreme Court of the Province possessed the juris- 
 diction of the Court of Divorce and Matrimonial Causes in Eng- 
 land. This view was finally confirmed by the decision of the Privy 
 Council in Watt v. Watt, [1908] A.C. 573. British Columbia thus 
 acquired jurisdiction in matrimonial causes, not by any express 
 pre-Confederation enactments of its Legislative Assembly, but by 
 a general Act bringing into force the civil and criminal laws of 
 England as they stood on the 19th November, 1858. 
 
 Coming now to the Province of Manitoba. This Province en- 
 tered Confederation in 1870, three years after the British North 
 America Act of 1867, by which the Dominion of Canada was creat- 
 ed. By section 91, s-s. 26, of that Act marriage and divorce are 
 subjects over which the Parliament of Canada has exclusive legis- 
 lative authority, while the Provinces have exclusive authority over 
 property and civil rights in the Provinces. As the Province of 
 Manitoba accepted that Act as its constitution when it joined Con- 
 federation in 1870, it is quite clear that the subjects of marriage 
 and divorce never were within the competence of the Legislature 
 of this Province. When the Court of King's Bench (then known as 
 the Coui't of Queen's Bench) was established, it w-as given all the 
 powers and authorities possessed on the 15th July, 1870, by any 
 Court in England having cognizance of property and civil rights 
 and of crimes and offences and the laws to be administered were 
 those applicable to property and civil rights as they existed in Eng- 
 land on that date or as they had been or might subsequently be al- 
 tered by the Legislature of the Province, the Parliament of Canada, 
 or the Imperial Parliament applicable to the Province. This gen- 
 eral Act is quite as comprehensive in its terms as the British Colum- 
 bia Act which, it has been held, conferred divorce jurisdiction upon 
 the Supreme Court of that Province. But the British Columbia Act 
 was passed before that Province became subject to the limitation 
 upon its legislative authority contained in sec. 91, s-s. 26 of the 
 British North America Act, whereas Manitoba came into existence 
 subject to these limitations. This Province could not by any legis- 
 lative Act of its own either enact or bring into force a law relating 
 to divorce.
 
 In 1888 the Dominion Parliament passed a general Act, 51 Vic. 
 c. 33, which provided that 
 
 "the laws of England relating to matters within the jurisdiction of 
 the Parliament of Canada as the same existed on the fifteenth day 
 of July one thousand eight hundred and seventy were from the said 
 day and are in force in the Province of Manitoba in so far as the 
 same are applicable to the said Province and in so far as the same 
 have not been or are not hereafter repealed, altered, varied, modi- 
 fied or affected by any Act of the Parliament of the United King- 
 dom applicable to the said Province or of the Parliament of Can- 
 ada." 
 
 Although the Act was passed in 1888, it was not until twenty- 
 nine years afterwards, viz., in 1917, that the claim was first made 
 that it had the effect of bringing into force in this Province the di- 
 vorce legislation of England as of the 15th July, 1870. Until that 
 year it had been assumed that the only means by which a person 
 domiciled in any of the Provinces of Canada, except the four in 
 which divorce jurisdiction had been acquired before entering Con- 
 federation, could obtain relief from the marriage tie was by a bill 
 in Parliament introduced in the Senate. The Courts of Quebec have 
 assumed jurisdiction not to dissolve but to annul a marriage be- 
 cause of antecedent impediment and even to entertain petitions for 
 separation from bed and board. I do not propose, however, to in- 
 vestigate the source of such jurisdiction. The prevailing opinion 
 in Ontario is that the Courts of that Province have no jurisdiction 
 to either dissolve or annul a marriage; T. v. B., 15 O.L.R. 224; Mmj 
 v. Maij, 22 O.L.R. 559 ; and A. v. B., 23 O.L.R. 261. 
 
 In 1917 a petition was presented to the Court of King's Bench 
 in this Province in Walker v. Walker, 28 M.R. 495, praying that 
 the marriage of the petitioner with the respondent be declared null 
 and void because of the alleged impotency of the latter. Mr. Justice 
 Gait dismissed the petition in order that the question of the Court's 
 jurisdiction might be taken to the Court of Appeal. That Court, by 
 a unanimous decision, held that the divoixe laws of England were 
 introduced into this Province by the Dominion Act of 1888 and 
 that the Court of King's Bench had the same jurisdiction as the 
 Courts have in England under the Matrimonial Causes Act, 1857, 
 and the amending Acts. Walker v. Walker was affirmed in the 
 Privy Council, [1919] A.C. 947. So that there is now no doubt that 
 the divorce laws of England as they existed on the 15th day of July, 
 1870, are in force in this Province and the jurisdiction to adminis- 
 ter the same is vested in the Court of King's Bench. 
 
 Saskatchewan and Alberta were created in 1905 out of part 
 of the territory then designated the North West Territories. In 
 1886, the Parliament of Canada had by 49 Vic. c. 25, enacted that 
 the laws of England as they stood on the 15th day of July, 1870, 
 should be in force in these Territories. When the new Provinces 
 
 8
 
 were created it was provided that the laws of the Territories should 
 become the law of the new Provinces. In Board v. Board, [1918] 
 2 W.W.R. 633, affirmed in the Privy Council, [1919] A.C. 956, it 
 was held that the effect of this legislation was to. make the Eng- 
 lish law of divorce part of the law of Alberta. 
 
 The same was held with regard to Saskatchewan by the Court 
 of Appeal of that Province, following Board v. Board, in Fletcher 
 V. Fletcher, [1920] 1 W.W.R. 5. 
 
 We have now seen that with respect to the three Provinces, 
 Manitoba, Saskatchewan and Alberta, with which I think may be 
 included the North West Territories, the divorce legislation of Eng- 
 land as it existed on the 15th day of July, 1870, and with respect to 
 British Columbia such legislation as it existed on the 19th Novem- 
 ber, 1858, is in force. The three Maritime Provinces have divorce 
 laws of their own. In Ontario and Quebec alone no Court has power 
 to dissolve a marriage and married people whose domicil is either 
 of these Provinces must if they desire relief, seek it through the 
 Senate. 
 
 It having been conclusively established that the right to divorce 
 had been introduced into the substantive law of this Province and 
 no other Court being designated to exercise jurisdiction in divorce, 
 the Court of King's Bench, as the only Superior Court of original 
 jurisdiction, at once became clothed with the power and bound in 
 duty to entertain and give effect to proceedings for making that 
 right operative ; Board v. Board, supra, at 962. 
 
 The Dominion Act of 1888 provided that "the laws of Eng- 
 land" relating to matters within the jurisdiction of the Parliament 
 of Canada should be in force in Manitoba. The Parliament of Can- 
 ada has no jurisdiction over procedure in civil matters, so that the 
 effect of that Act was to bring into force the substantive law of 
 divorce only. Indeed it is doubtful if the term "laws of England" 
 would be wide enough in any event to include rules of practice and 
 procedure. 
 
 Then has the Legislature of this Province, which alone has 
 jurisdiction over practice and procedure in civil matters, by any 
 Act brought into force here the English divorce rules and pro- 
 cedure. It is not necessary to discuss the debatable question as to 
 whether this procedure had become part of the law of Assiniboia 
 prior to the entry of this Province into Confederation. By sec. 4 
 of the Act re.specting the Court of Queen's Bench, R.S.M. 1880, it is 
 provided that the Court is to be "governed by the rules of evidence 
 and the modes of practice and procedure as they were, existed and 
 stood in England" on the 15th July, 1870, except as they already had 
 been or might thereafter be changed. At the time of the passing 
 of this Act the law of divorce was not a part of the substantive law 
 of Manitoba unless derived from the laws of Assiniboia, a point
 
 which was discussed in Walker v. Walker in both the Court of Ap- 
 peal and Privy Council but treated as immaterial and therefore not 
 decided. If the right of divorce was not part of the law of Mani- 
 toba in 1880, as I assume to be the fact, it could not be presumed 
 that the Legislature by the Act referred to intended to introduce a 
 procedure for the enforcement of a non-existing law. 
 
 The same presumption does not exist with respect to the re- 
 enactment of this section in substantially the same form in the re- 
 visions of 1892, 1902, and 1913, after the law of divorce had be- 
 come part of the law of the Province by virtue of the Dominion 
 Act of 1888. The conclusion, therefore, is that the substantive law 
 of divorce was made part of the law of this Province in 1888, and 
 by the re-enactment of sec. 4 of the Queen's Bench Act of 1880 in 
 the Revision of 1892 and again in 1902 and 1913 the English Di- 
 vorce Rules as they existed on the 15th day of July, 1870, were also 
 introduced here. There has been no legislation of either the Legis- 
 lature of Manitoba, the Parliament of Canada or of the United 
 Kingdom applicable here altering this procedure. It follows that it 
 is still in force except in so far as it has been changed or altered 
 "by any rule or rules, order or orders of" the Court of King's Bench 
 "lawfully made," sec. 11, K.B. Act. 
 
 Sec. 53 of the K.B. Act gives the Court power to make rules of 
 Court for the purpose of carrying this Act into effect or for the pur- 
 pose of providing for any matters not fully or sufficiently provided 
 for in this Act. It seems that this power is sufficiently compre- 
 hensive to include the making of divorce rules. But the question 
 is academic because under sec. 53 of the Divorce Act, 1857, the 
 Court has ample power to do so. 
 
 Even if we had nothing but the ordinary machinery of the 
 Court of King's Bench, it would be the duty of the Court to adapt 
 that machinery to the working out of the rights conferred by the 
 statute without regard to the special machinery established in Eng- 
 land for that purpose ; WhitbTj v. Liscombe, 23 Grant 1 ; .S. v. S., 1 
 B.C.R. 25. 
 
 It is desirable that codes of procedure should not be multiplied 
 and that so far as possible all civil remedies should be prosecuted 
 in accordance with the same rules of procedure. The rules of the 
 Court of King's Bench, however, were not made with a view to 
 carrying out the Divorce Acts or to provide procedure appropriate 
 to a divorce action. These rules as a whole cannot be applied to 
 such a proceeding without the most liberal constructions ; so liberal 
 indeed as to amount to legislation. 
 
 Such a proceeding could not be instituted by a Statement of 
 Claim as in an ordinary action because the Act itself says that the 
 relief may be obtained upon petition, (sec. 27) ; and where an Act 
 which 
 
 10
 
 "Creates a new jurisdiction, a new procedure, new forms or new 
 remedies, the procedure, forms or remedies there prescribed and 
 no others must be followed until altered by subsequent legislation." 
 
 Craie's Hardcastle, 4th ed. 306; and see Fletcher v. Fletcher, 
 [1920] 1 W.W.R. 6. 
 
 In England it had been found necessary to amend the rules 
 subsequent to the 15th July, 1870, and in order that we might have 
 in this Province a procedure which would include these amend- 
 ments as well as any others which it might be thought desirable to 
 make, I, in September last, drafted a set of Divorce Rules, using as 
 a basis the English Rules as they then existed. This draft was sub- 
 mitted to a joint committee of the Law Society and of the Bar As- 
 sociation, and with some suggested alterations, the rules were 
 passed by the Judges on the 8th September last to be effective on 
 the 15th September. 
 
 I have now devoted considerable time to what may be called 
 the historical aspect of the subject, but not more, I think, than is 
 necessary for its intelligent comprehension. 
 
 I propose now to discuss the right itself. 
 
 THE DIVORCE AND MATRIMONIAL CAUSES ACT of 
 1857 was followed by other Acts in each of the years 1858, 1859, 
 1860, 1862, 1864, 1866 and 1868. Several amending acts of more 
 recent date were also passed, but as they all came into effect after 
 the 15th day of July, 1870, they do not concern us. 
 
 EVIDENCE OF PARTIES: There is also another Imperial 
 Act which has an intimate bearing on this subject. I refer to The 
 Evidence Further Amendment Act of 1869, c. 68. This Act finally 
 removed all restrictions on the competence of parties to give their 
 evidence on oath in matrimonial causes, but it at the same time im- 
 posed a very important restriction on the right to examine any 
 witness, whether a party or not, with respect to his or her own 
 adultery. Section 3 of the Act says : 
 
 "The parties to any proceeding instituted in consequence of 
 adultery and the husbands and wives of such parties shall be com- 
 petent to give evidence in such proceeding; provided that no wit- 
 ness in any proceeding whether a party to the suit or not shall be 
 liable to be asked or bound to answer any question tending to show 
 that he or she has been guilty of adultery unless such witness shall 
 already have given evidence in the same proceeding in disproof of 
 his or her alleged adultery." 
 
 The practice in the Ecclesiastical Courts was to hear all causes 
 on written depositions. This practice was reversed by sec. 46 of 
 the 1857 Act in so far as witnesses were concerned. By that sec- 
 tion all witnesses whose attendance can be procured are subject to 
 the rules to be examined orally in open Court. The parties were 
 still permitted to verify their cases in whole or part by affidavit, 
 
 11
 
 subject to the right of the opposite party to require the affiant to 
 attend and submit to cross-examination and re-examination orally 
 in open Court. 
 
 Section 43 empowered the Court to order the attendance of the 
 petitioner and either examine or permit him or her to be examined 
 on oath on the hearing of the petition ; but the petitioner was not 
 bound to answer any question tending to show that he or she had 
 been guilty of adultery. 
 
 When the 1857 Act was passed the parties to a matrimonial 
 suit were not competent to give evidence as to adultery, cruelty or 
 desertion, or any other matrimonial offence. These two sections, 
 43 and 46, con.stituted the first relaxation of the rule. Section 6 of 
 the 1859 Act made both the husband and wife competent and com- 
 pellable witnesses as to cruelty or desertion upon a wife's petition 
 charging the husband with adultery coupled with either. Then fol- 
 lowed the Evidence Act, 1869, making the parties and their hus- 
 bands and wives competent but not compellable in any proceeding 
 instituted in consequence of adultery. 
 
 When a witness is called to prove adultery with one of the 
 parties, it is the privilege of the witness to decline to give evidence ; 
 but unless the witness claims the protection of the statute, his or 
 her evidence is admissible and neither party nor their counsel has 
 any right to object. It is the duty of the Judge, however, to tell 
 the witness that he or she is not liable to be asked or bound to 
 answer any question tending to show his or her adultery unless 
 willing to do so. Hehblethivaite v. Hebblethwaite L.R. 2 P. & D. 
 29 (1869) and see per Brett, M.R. Harvey v. Lovekin, L.R. 10 P.D. 
 at 129. 
 
 DISCOVERY : Discovery may be obtained in a matrimonial 
 suit either by affidavit of documents or interrogatories. The prac- 
 tice obtained in the Ecclesiastical Courts and has come down from 
 them ; Harveij v. Lovekin, supra. But independently of the Ecclesi- 
 astical practice the right to obtain discovery by either of the 
 methods above named or by oral examination exists in this Prov- 
 ince because sec. 75 of the Divorce Rules makes the K.B. rules re- 
 lating to discovery applicable to matrimonial causes ; provided that 
 no document need be produced and no interrogatory or oral ques- 
 tion need be answered if the production of such document or the 
 answer to such interrogatories or question would tend to show that 
 the party from whom discovery is sought had committed adultery. 
 And if the proof of adultery be the sole object of the discovery it 
 will not be granted, Redfern v. Redfern L.R. 1891, P.D. 139. 
 
 CAUSES OF ACTION: There are seven different kinds of 
 actions which may now be brought under the Divorce Acts : 
 First : Dissolution of marriage. 
 Second: Judicial separation. 
 
 12
 
 Third : Nullity of marriage. 
 
 Fourth: Restitution of conjugal rights. 
 
 Fifth : Jactitation of marriage. 
 
 Sixth : To establish legitimacy, the validity of marriage and 
 the right to be deemed a natural born subject. 
 
 Seventh : Damages claimed by a husband against a person 
 who has committed adultery with his wife. 
 
 Petitions for dissolution of marriage are of most frequent oc- 
 currence as well as the most important of the proceedings which 
 may be instituted under the Act. It is the only proceeding to which 
 the term divorce is now applicable. 
 
 GROUNDS OF DIVORCE : The grounds upon which such a 
 divorce may be obtained are stated in sec. 27. 
 
 A husband may obtain a dissolution of marriage with his wife 
 on the sole ground of adultery since their marriage. On the other 
 hand, a wife cannot obtain a dissolution of her marriage on the 
 sole ground of her husband's adultery. The grounds upon which a 
 wife may obtain such a decree are that since their marriage he has 
 been guilty of: 
 
 1. Incestuous adultery. 
 
 2. Bigamy, with adultery. 
 
 3. Rape. 
 
 4. Sodomy. 
 
 5. Bestiality. 
 
 6. Adultery coupled with such cruelty as without adultery 
 would formerly have entitled her to a divorce a mensa et 
 thoro. 
 
 7. Adultery, coupled with desertion without reasonable ex- 
 cuse for two years or upwards. 
 
 CO-RESPONDENT: When the husband flies a petition he 
 must make the alleged adulterer a co-respondent unless upon 
 special grounds the Court excuse him from doing so. The practice 
 in this respect is stated in Browne & Watt on Divorce, 285 to 287. 
 If the wife is the petitioner she may not without leave add as a 
 party the person with whom the husband is alleged to have com- 
 mitted adultery, but the Court may direct that such person be add- 
 ed as a respondent. By sec. 11 of the Act of 1858, the Court is em- 
 powered after the close of the evidence to dismiss from the suit the 
 co-respondent or the respondent so added if there is not sufficient 
 evidence against him or her. 
 
 DEFENCES: The defence which may be set up by either a 
 respondent or a co-respondent to a suit for dissolution are: 
 
 1. A denial of the facts alleged in the petition. 
 
 2. Connivance. 
 
 3. Condonation. 
 
 4. Collusion. 
 
 13
 
 Section 30 of the 1857 Act makes each of these defences if 
 established, an absolute bar to the action. That section provides 
 that if the Court is not satisfied that the alleged adultery has been 
 committed or shall find that the petitioner has been accessory to or 
 has connived at the adultery or has condoned it, or that there is 
 collusion between the petitioner and either of the respondents, the 
 petition shall be dismissed. And sec. 29 makes it the duty of the 
 Court not only to satisfy itself as to the truth of the facts alleged 
 but also whether or not the petitioner has been accessory to, or as to 
 whether there has been connivance, condonation or collusion. 
 
 There are several other matters of defence which may be set 
 up which, while they do not constitute an absolute bar to a decree, 
 the Court has a discretion if such defence is made out, to refuse a 
 decree. These are stated in the proviso to sec. 31 and are 
 
 1. That the petitioner has during the marriage been guilty 
 of adultery. 
 
 2. That the petitioner has been guilty of unreasonable delay. 
 
 3. That the petitioner has been guilty of cruelty to the other 
 party to the marriage. 
 
 4. That the petitioner had without reasonable excuse de- 
 serted or wilfully separated from the other party to the 
 marriage before the adultery complained of; or had been 
 guilty of such wilful neglect or misconduct as had con- 
 duced to the adultery. 
 
 Courts of Appeal have refused to restrict the discretion given 
 by this section by laying down rules, but have left it as wide as the 
 statute has left it; Wickins v. Wickins, [1918], P. 265; Hollond v. 
 Hollond, Id. 273 ; and Hines v. Hines, Id. 364. 
 
 DAMAGES: In a petition by a husband either for dissolu- 
 tion or for judicial separation he may either as the sole relief or 
 in addition to the other relief, claim from his wife's adulterer such 
 damages as he would be entitled to in the common law action of 
 criminal conversation. See sec. 33. The damages claimed must 
 be assessed by a jury, and after verdict the Court may direct how 
 the damages are to be applied and may direct that the whole or any 
 part shall be settled for the benefit of the children, if any, or as a 
 provision for the maintenance of the wife. I have already pointed 
 out that a husband may present a petition for this relief alone, but 
 petitions for damages as the sole relief are of very rare occurrence 
 in England and I apprehend will be equally rare here. 
 
 Having given the husband the equivalent remedy by petition, 
 either with or without a claim for other relief, sec. 59 of the Act 
 abolished the common law right of action for criminal conversation. 
 
 As the common law action of criminal conversation had been 
 abolished in England in 1857, it was not part of the law of Eng- 
 land on the 15th July, 1870, and so was not introduced into this 
 
 14
 
 Province. By the original of what are now sees. 10 and 11 of the 
 KB. Act, this defect was remedied by what is now sec. 18 of 
 that Act, which gives the Court jurisdiction in actions of criminal 
 conversation. It provides, however, that the law applicable to such 
 actions shall be as the same was in England prior to the abolition 
 of such action there, i.e. in 1857 ; but that the practice shall be the 
 same as in other actions in the Court. 
 
 An injured husband has thus alternative remedies; he may 
 •proceed fo'r damages by ordinary action or he may proceed by way 
 of petition under the Divorce Acts. The only advantage in suing at 
 common law is that the Court has in that case, no power to appro- 
 priate the damages so recovered. 
 
 While from time immemorial the law has given a husband a 
 right to damages from his wife's seducer, it has never given the 
 wife a right of action against her husband's seductress; Eversleij 
 on Domestic Relations, 175 ; 8 A. & E.E. 261. The reason assigned 
 by Blackstone for this discrimination against the wife is the sub- 
 servient relation she occupied at common law. The husband had 
 a property in his wife's services, but the wife had none in the ser- 
 vices of her husband. She could only sue jointly with her husband 
 and the damages recovered belonged to him and he would thus 
 profit by his own wrong. The law could not tolerate a result so 
 indecent. 
 
 It is no defence for the adulterer to say that he was not aware 
 that the wife was a married woman, but the fact (the onus of es- 
 tablishing which is on the petitioner) may be considered in estimat- 
 ing the damages; Lord v. Lord, L.R., [1900] P. 297. It is otherwise 
 with respect to awarding costs against a co-respondent. By sec- 
 tions 34 and 51 of the Act, the Court is given a discretion upon 
 proof of the adultery to award the whole or part of the costs against 
 the co-respondent. The dominant fact by which the discretion of 
 the Court is influenced is whether or not the co-respondent knew 
 that the respondent was a married woman. If he was aware of 
 that fact when the intimacy commenced he will generally be con- 
 demned in the costs; if he did not know the woman was married 
 at the beginning he will not generally be so condemned even though 
 he continued the intimacy after making the discovery ; Badcock v. 
 Badcock, 1 Sw. & Tr. 189, and Bilby v. Bilbij, [1902] P. 8. The 
 onus of showing such knowledge by the co-respondent is upon the 
 petitioner; Teagle v. Teagle, 1 Sw. & Tr. 188. Cases collected 
 Hall on Divorce, 298. 
 
 The principle upon which damages are awarded is not punish- 
 ment of the co-respondent but the loss which the petitioner has sus- 
 tained. On this principle it makes no difference whether the co- 
 respondent be rich or poor. In practice it will be found that juries 
 
 15
 
 will consider the co-respondent's ability to pay, and will some- 
 times ask for information on that point as they did in Keyes v. 
 Keyes, 11 P.D. 100. The information, however, should not be sup- 
 plied, but they should be told as Sir James Hannen told them in 
 that case, that "the means of the co-respondent have nothing to do 
 with the question. The only question is what damage the petitioner 
 has sustained and the damage he has sustained is the same whether 
 the co-respondent is a rich man or a poor man." 
 
 DOMICIL: The domicil of the parties at the time bf the in-, 
 stitution of the proceedings is a matter of very great importance 
 because unless their domicil is in this Province the Court has no 
 jurisdiction to dissolve the marriage. The same rule does not apply 
 to other matrimonial suits. By sec. 22 of the Act as to these the 
 Court is required to "proceed, act and give relief on principles and 
 rules" which in the opinion of the Court are as nearly as may be 
 comformable to the principles and rules on which the Ecclesiastical 
 Courts acted. The Court is not tied to the principles and rules of 
 the Ecclesiastical Courts in suits for dissolution because these 
 Courts had no power to dissolve a marriage. 
 
 Not only will British Courts refuse to entertain. suits for the 
 dissolution of the marriage of parties whose domicil is not within 
 the jurisdiction of the Court, but they will refuse to recognize the 
 validity of the judgment of a foreign Court purporting to dissolve 
 marriage contracted in British territory unless the domicil of the 
 married pair was at the time within the jurisdiction of the foreign 
 Court. According to international law the marriage tie can only 
 be severed in accordance with the laws of the country wherein they 
 are domiciled and by the tribunals which alone can administer 
 these laws. The leading case on this subject is Le Mesurier v. Le 
 Mesurier, [1895] A.C. 517, and followed in Rex v. Woods, 6 O.L.R. 
 41, and Cutler v. Cutler, 20 B.C.R. 34; AnghinelU v. Anghinelli, 
 [1918] P. 247, and Casdngli v. Cmdagli, [1919] A.C. p. 145. The rule 
 of international jurisprudence prevails to this extent that a divorce 
 granted by a tribunal of a foreign Christian state in which the 
 parties have their domicil will, in the absence of evidence of fraud 
 or collusion, be recognized as valid here although granted for a 
 cause for which a divorce could not be granted here. Thus an 
 English marriage was dissolved in Scotland at the suit of the wife 
 on the ground of the husband's adultery alone, uncoupled with 
 either desertion or cruelty. The parties were at the time domiciled 
 in Scotland, and it was held in all the Courts that although the 
 decree of dissolution was obtained for a cause for which it could 
 not have been obtained according to the laws of England, it never- 
 theless had the effect of dissolving the marriage in England. The 
 case referred to is Farnie v. Farnie, 5 P.D. 153. The decision was 
 affirmed in the Court of Appeal, 6 P.D. 35, and in the House of 
 
 16
 
 Lords, 8 A.C. 43, Batcr v. Bater. [1906] P. 209. Pemberton v. 
 Hughes, [1899] 1 Ch. 781. Cromarty v. Cromarty, 38 O.L.R. 
 481. 
 
 DOMICIL OF WIFE : It can be laid down as a rule of almost 
 universal application that the domicil of the wife for the purposes 
 of the divorce laws is that of the husband. In Farnie v. Farnie, 
 supra, Lord Justice James says, 6 P.D. at 46 : 
 
 "A wife's home is her husband's home ; a wife's country is her 
 husband's country ; a wife's domicil is her husband's domicil ; and 
 any question arising with reference to the status of those persons 
 is, according to my view, to be determined by the law of the domicil 
 of those persons ; assuming always that the domicil is a bona-fide 
 one not a domicil either fictitious or resorted to for the sole purpose 
 of altering the status." 
 
 Similar views were expressed by Lord Selbourne in the House 
 of Lords, 8 A.C. 50. 
 
 The rule so dogmatically stated by Lord Justice James and to 
 which he said there was no exception has been departed from in at 
 least two cases because of the intolerable hardship which would 
 result from a strict adherence to the rule. The first case was 
 Stathatos v. Stathatos, [1913] P. 46. In that case the petitioner, 
 an English woman, had married in England a Greek whose domi- 
 cil was Greece. Upon marriage her domicil at once became that 
 of her husband. After living for a time in London they went to 
 Greece where the husband obtained from the Greek Court a decree 
 declaring his marriage null and void because no Greek priest had 
 been present at the ceremony. The marriage was perfectly valid 
 according to the law of England, so that the petitioner was in the 
 awkward position of being a wife according to the law of England 
 but not according to the law of her husband's and therefore her 
 own domicil. She returned to England and filed a petition for 
 dissolution upon the ground of her husband's adultery and deser- 
 tion. Bargrave Deane, J., adopting a suggestion made by the Court 
 of Appeal in Ogderi v. Ogden, [1908] P. 46, held that under the 
 circumstances, the wife was entitled to petition the Court of her 
 own domicil to which she had reverted and decreed a dissolution 
 of the marriage. The other case is de Montaigu v. de Montaigu, 
 [1913] P. 154. The circumstances were very similar, the only 
 difference being that the husband was a domiciled Frenchman and 
 the nullity decree was pronounced by a French Court. Sir Samuel 
 Evans in deciding in favour of the wife's petition said : 
 
 "The situation is an intolerable one for the wife, and I think 
 it is better where necessary, in a case like this, to make an excep- 
 tion from the ordinary rule that domicil governs these cases and to 
 grant her a decree as a practical way of giving her the redress to 
 which she is entitled and without which she will be suffering great 
 hardship." 
 
 17
 
 Then there are other circumstances in which the rule may 
 work great hardship to an innocent wife; but as the law is laid 
 down I cannot see any way out of the difficulty. I refer to the case 
 where a married pair having their domicil and residence in this 
 country, the husband deserts his wife and acquires a domicil in a 
 foi-eign country, having either before or after the desertion com- 
 mitted acts which if still domiciled in Manitoba would entitle his 
 wife to have the marriage dissolved here. Must the wife in order 
 to procure redress institute proceedings in the Courts of his new 
 domicil or may she have recourse to the Courts of this country? 
 .The point is not covered by the two decisions above referred to 
 because the basis of the decision in both cases was that the wife 
 could obtain no relief through the Courts of her husband's domicil. 
 There is one case in which the decision itself if not the reasoning 
 which led up to it is directly in point. I refer to Deck v. Deck, 2 
 Sw. & T. 90 (1860). In that case the parties wei'e married in 
 England where they both were domiciled. Some time after the 
 marriage the husband deserted his wife and went to the United 
 States and acquired a domicil there. He there contracted a bigam- 
 ous marriage with another woman and lived in adultery with her. 
 The wife who continued to reside in England filed her petition on 
 the ground of bigamy and adultery. The Full Court composed of 
 three Judges held that it had jurisdiction and dissolved the mar- 
 riage. 
 
 At p. 93 of the same volume the case of Bond v. Bond is re- 
 ported. There it was doubtful whether the domicil of the husband 
 was Irish or English. The Court said if it had appeared that his 
 domicil was Irish it would have had to consider whether the Court 
 had jurisdiction, but it did not find the evidence of Irish domicil so 
 conclusive as to compel the Court to deal with the case on that basis 
 and the marriage was dissolved, referring to Deck v. Deck. 
 
 The question has not directly arisen in any other case that I 
 am aware of. In Le Sueur v. Le Sueur, 1 P.D. 139 (1876) Sir R. J. 
 Phillimore refers to Deck v. Deck and distinguishes it. He was 
 dealing with a case where the parties had been married in Jersey, 
 where they had their domicil. After some years they separated 
 and the husband went to the United States. The wife went to 
 England and established a permanent residence there. The hus- 
 band never had a domicil in England. It was held that there was 
 no jurisdiction to entertain the wife's petition for divorce. Philli- 
 more, J., evidently had Deck v. Deck in his mind when he said : 
 
 "In the case before me the wife is suing her husband not in 
 the tribunal of the place of his original domicil or of the marriage, 
 or, of his acquired domicil, but in a tribunal to which he has never 
 been subjected by any act of his own." 
 
 In the case of Niboi/et v. Nihoyet, 4 P.D. 1 (1878) the Court 
 of Appeal decided that an Englishwoman who married a French- 
 
 18
 
 man at Gibraltar and afterwards lived with him in England might 
 sustain a petition for divorce in England although the husband's 
 domicil continued to be French. That case, however, is directly 
 against the decision of the Privy Council in the later case of Le 
 Mcsurier v. Le Mesuiier, [1895] A.C. 517, and as the latter is 
 binding on this Court it would be followed here. In Niboyet v. 
 Niboyet, Lord Justice Brett, who dissented, refers at p. 14 to the 
 point I am now discussing. He there says : 
 
 "The case of an adulterous husband deserting his wife by leav- 
 ing the counti-y of his domicil and assuming to domicile himself in 
 another might seem to raise an intolerable injustice; but we cannot 
 help thinking that in such case if sued by his wife in the country in 
 which he had left her he could not be heard to allege that that was 
 not still the place of his married home, i.e. for the purposes of that 
 suit his domicil." 
 
 Gorell Barnes, J., said something very similar in Armytage v. 
 Armytage, [1918] P. at 185, and in 6 Hals, at 263, it is stated that 
 such is probably the law although the point has never been decided. 
 
 In Farnie v. Faniie. 6 P.D. at 49, Lord Justice Cotton suggests 
 that the rule as to the wife's domicil being that of the husband 
 might not apply and that they would not be held to be domiciled in 
 a country to which he took her because of the greater facilities of 
 procuring a divorce there by making her subject to the tribunals of 
 that country. 
 
 Notwithstanding these dicta and the decision in Deck v. Deck 
 and Niboyet v. Niboyet, in effect overruled by the decision of the 
 Privy Council in Le Mesurier v. Le Mesurier, the point must be re- 
 garded as still open. Until some exception such as suggested by 
 Brett, L. J., in Niboyet v. Niboyet or by Gorell Barnes, J., in Army- 
 tage V. Armytage is established by a Court of Appeal, the wise 
 course will be to assume that there is no exception and that when 
 a husband has acquired a bona fide domicil in a foreign country 
 such also must in the eyes of the law be the domicil of his wife even 
 though he acquired such new domicil after deserting his wife in 
 the country of his former domicil. The principle of international 
 law is that the Courts of one country are bound to recognise the 
 validity of decrees of divorce pronounced by the Courts of another 
 country if and only if the parties were domiciled within the juris- 
 diction of the Court by which the decree was pronounced. A sen- 
 tence of divorce pronounced by the Courts of this country in a suit 
 by the wife against a husband whose domicil was in a foreign coun- 
 try would not be entitled to recognition by the tribunals of the state 
 of the husband's domicil. It would only be effective within the 
 jurisdiction where it was pronounced. The cases of Stathatos v. 
 Statliatos and de Montaigu v. de Montaigu did not violate any prin- 
 ciple of international law because in both cases the marriage had 
 already been declared null by the Courts of the country of the hus- 
 
 19
 
 band's domicil and it was only a question of loosing the bonds in 
 England. 
 
 CO-RESPONDENT : Where the husband is the petitioner he 
 must by sec. 2 of the Act make the alleged adulterer a co-respon- 
 dent unless upon special grounds he is excused from doing so. As 
 to the circumstances under which such an order may be obtained, 
 see Browne & Watts, 286. 
 
 ADULTERESS RESPONDENT : When the wife is the peti- 
 tioner she is not obliged to add as a party the person with whom 
 her husband is charged with having committed adultery, but sec. 
 28 empowers the Court to direct that the husband's seductress be 
 made a respondent. Note that she is not to be added as a co-res- 
 pondent but as a respondent. 
 
 MARRIAGE : The first thing to be proved is of course the 
 marriage. That can usually be done if performed in Manitoba by 
 the evidence of the petitioner supported by a certificate from the 
 proper official. If elsewhere in Canada or any other part of the 
 British Dominions or in the United States, a properly certified copy 
 of the register should be produced. It is not necessary in these 
 cases to call expert evidence to prove the validity of the marriage 
 as by sec. 32 of the Manitoba Evidence Act the Court takes judicial 
 notice of the laws of these places. If the marriage took place in 
 any foreign country other than the United States- it is necessary to 
 give some evidence of its legality according to the law of the place 
 where it was performed. This evidence should be given by some 
 one having some knowledge of the foreign law; Baler v. Bater, 
 [1907] P. 333; Barford v. Barford, [1918] P. 140. See further 
 Broivne & Watts 261 et seq. 
 
 PROOF BY AFFIDAVIT : The same rules of evidence are to 
 be observed in divorce as in other proceedings in the Court, with 
 this difference, that by leave of the Court — usually granted by a 
 Judge in Chambers — the parties may, by sec. 46 of the Act and 
 rules 46 to 51, be permitted to prove the whole or any part of their 
 petition by affidavit. The practice is to allow what may be 
 described as the "mere fringe of the case" to be proved in this 
 way: Adams v. Adams, 29 L.T. 699. The fringe will include the 
 domicil, the marriage, the identity, the cohabitation and the issue, 
 but not the substantive portion of the case. It is only in a very 
 exceptional case that it will permit the fact of adultery to be so 
 proved by affidavit even where there is no defence. The mere sav- 
 ing of the expense of a commission is not a sufficient reason : Gayer 
 V. Gayer, [1917] P. 64; but the fact that the expense of a commis- 
 sion was beyond the means of the petitioner may be a sufficient 
 reason for allowing adultery to be proved by affidavit; Burslem v. 
 Burslem, 67, L.T. 719, and per Cozens-Hardy, M.R., Gayer v. Gayer, 
 at 68. 
 
 20
 
 In Gayer v. Gaijer, the Court of Appeal disapproved of the 
 practice which had grown up since 1908 of allowing almost as a 
 matter of course the whole case to be proved by affidavit evidence 
 in undefended cases and approved the earlier and stricter practice. 
 
 It is not necessary to give direct proof of adultery. Proof of 
 familiarities coupled with the opportunity for adultery may be suf- 
 ficient to raise a presumption. In petitions for dissolution, unlike 
 other matrimonial causes, the Court is not, by sec. 22 of the Act, 
 bound by the rules of the Ecclesiastical Courts, but may act upon 
 any evidence legally admissible. 
 
 CONFESSIONS : It is the general practice in matrimonial 
 causes not to act and grant relief upon uncorroborated confessions 
 of adultery, but there is no absolute rule of either law or practice 
 precluding the Court from acting upon such confession. The test 
 is whether the Court is satisfied that the confession is true. Cases 
 are not infrequent in which such uncorroborated admissions are 
 acted upon ; Rohlnson v. Robinson, 1 Sw. & Tr. 362, Getty v. Getty, 
 [1907] P. 334. 
 
 It is stated in Browne & Watts at 255, that the Court will not 
 act on the uncorroborated evidence of a party in a matrimonial suit. 
 That no doubt is the general rule, but it is not absolute. There is 
 no rule of law which prevents the Court from acting upon the un- 
 corroborated evidence of the petitioner if such evidence carries 
 conviction, to the mind of the Court ; Riches v. Riches, 35 T.L.R. 141 
 (1918). By sec. 29 of the Act the Court is to "satisfy itself in so 
 far as it reasonably can" and it should scrutinize uncorroborated 
 evidence of the petitioner" cautiously, closely and even suspicious- 
 ly." Read v. Read, [1905] Vic. L.R. 424. 
 
 IDENTIFICATION : The identity of the respondent and co- 
 respondent with the charges alleged in the petition is very import- 
 ant. There are six principal means of identification. 
 
 First : Witnesses called to prove the adultery may know the 
 parties and from such knowledge be able to swear that the adultress 
 is the respondent named in the petition and the person with whom 
 she committed adultery is the co-respondent. Evidence of this kind 
 is the most direct and most satisfactory. 
 
 Secondly : The witnesses to prove the adultery may have seen 
 the persons charged and identified them in the presence of some 
 other witnesses who can prove that the persons so identified are the 
 parties to the suit. The evidence uncorroborated of the petitioner 
 alone for this purpose will not suffice: Harris v. Harris, L.R. 2 
 P. & D. 77. 
 
 Thirdly : Photographs of the party or parties may be looked at 
 for the purpose of identification. This is but secondary evidence 
 and can only be allowed where the petitioner is unable to produce 
 better evidence. Even then it will not be acted upon unless in some 
 way corroborated. In Frith v. Frith, [1896] P. 74, Gorell Barnes, 
 
 21
 
 J., refused to grant a decree where the witness to the adultery only 
 identified the respondent by a small photograph sworn by the pe- 
 titioner to be that of his wife. The learned Judge said : 
 
 "I cannot act upon a photograph alone and this is a very small 
 one. I am continually asked to do this, but it should be known that 
 it is not the practice of the Court except under very special circum- 
 stances to act upon a photograph alone." 
 
 Fourthly : Identity may be proved by handwriting ; this is but 
 another kind of secondary evidence" and should only be allowed 
 when better evidence is not available, and when the evidence is 
 clear and satisfactory. 
 
 Fifthly: Confrontation was a method of identification prac- 
 tised in the Ecclesiastical Courts. And an order requiring the re- 
 spondent to attend in Court for the purpose of being fconfronted 
 with the petitioner's witnesses might still be made in any but a 
 suit for dissolution, to which the Ecclesiastical practice does not 
 apply. Section 43 of the Act empowers the Court to order the at- 
 tendance of the petitioner at the hearing of the petition in all suits, 
 but it is silent as to ordering the attendance of the respondent. In 
 Hooke V. Hooke (1858) 4 Sw. & Tr. 236, the Judge Ordinary in a 
 petition for dissolution held that the Court had no power to order 
 the attendance of the respondent for the purpose of identification. 
 
 Sixthly : The practice has been resorted to in several cases here 
 of bringing the respondent into Court under subpoena not as a wit- 
 ness, but merely to get him or her into Court that they may be 
 identified. Sec. 49 empowers the Court to command the attendance 
 of witnesses by subpoena. This does not appear to be a legitimate 
 use of a subpoena. The practice was severely condemned by 
 Shearman, J., in Farulli v. Farulli, [1917] P. 28. 
 
 In a note it is stated that during the examination of a witness 
 the respondent, who had been brought into Court on a subpoena, was 
 asked to stand up, but the Judge forbade it. He said it was all 
 right when the person in Court is willing to stand up and does so 
 by consent, but that it was an abuse of the use of a subpoena to 
 bring a person into Court for the sole purpose of being asked to 
 stand up. 
 
 CRUELTY: When a wife petitions for dissolution on the 
 ground of adultery coupled with cruelty, she must by sec. 27 allege 
 and prove "such cruelty as without adultery would have entitled 
 her to a divorce a mensa et thoro." The question of what con- 
 stitutes cruelty within the meaning of this section was much dis- 
 cussed in the famous action brought by the Countess of Russell 
 against her husband for restitution of conjugal rights and the 
 counter petition by him for a judicial separation on the ground of 
 cruelty. The cruelty alleged was making and persisting in making 
 unfounded charges against him of gross and unnatural practices, 
 even after these charges had been disproved in a Court of Law. The 
 
 22
 
 petition and counter petition were tried before Baron Pollock and 
 a jury. The jury found in favour of cruelty and the Court granted 
 the husband's petition. On appeal the Court of Appeal held that 
 the Earl was not entitled to a judicial separation because the con- 
 duct complained of did not amount to cruelty. They also refused 
 to make a decree for restitution in her favour. Both parties ap- 
 pealed to the House of Lords where it was argued before Lord Hals- 
 bury, L.C., and Lords Hobhouse, Ashbourne, Morris, Herschell, 
 Watson, Macnaghten, Shand and Davey. The first four were for 
 reversing the Court of Appeal, but the last five thought it ought to 
 be dismissed, and it was dismissed accordingly. 
 
 The judgment with which the majority of the Lords agreed 
 was delivered by Lord Herschell and he has furnished a definition 
 of cruelty which has been acted upon since. His judgment is too 
 long to quote here but it can be found in [1897] A.C. at 444, and 
 will well repay perusal. Briefly it is that to constitute cruelty there 
 must be bodily hurt or injury to health or a reasonable apprehen- 
 sion of one or the other of these. Lord Herschell's definition was 
 adopted by myself in Willey v. Willeij (1908) 18 M.R. 298, and very 
 recently by the Court of Appeal in Ontario in Whimbey v. Whimbey 
 (1919), 45 O.L.R. 228. 
 
 Russell v. Russell was a case of judicial separation which by 
 sec. 22 is to be dealt with according to the principles and rules of 
 the Ecclesiastical Court. That section does not apply to petitions 
 for dissolution "which could not be maintained in the Ecclesiastical 
 Courts. However, when a wife petitions for dissolution on the 
 ground of adultery coupled with cruelty, sec 27 makes it incumbent 
 on her to prove "such cruelty as without adultery would have en- 
 titled her to a divorce a vieusa et thoro." That is to say she must 
 establish the kind of cruelty the Ecclesiastical Courts acted upon. 
 Such cruelty is shown by the Russell case to be bodily hurt or injury 
 to health or a reasonable apprehension of one or the other. In 
 Broivn & Watts, the statement is made at p. 66 that in petitions for 
 dissolution the Court has a free hand with respect to cruelty and is 
 not hampered by the principles and rules of the Ecclesiastical 
 Courts. It seems to me the learned authors must have overlooked 
 the provisions of sec. 27 with respect to what cruelty must be es- 
 tablished when a wife makes that one of the grounds for a decree 
 of dissolution. In the case of a husband seeking such relief cruelty 
 is not an ingredient. I know of no case since Russell v. Russell 
 in which any less degree of cruelty than that stated by Lord Her- 
 schell has been held to be sufficient in a matrimonial suit. In 
 Jeapes v. Jeapes, (1903) 89, L.T.R.N.S. 74, it was held that spread- 
 ing a false charge concerning the wife, whereby her health was in- 
 jured was cruelty. But such a charge without resulting injury to 
 the wife's health would not be cruelty within the law; per Fergu- 
 son, J. A., Whimbey v. Whimbey, 45 O.L.R. at 233. 
 
 23
 
 In Jeapes v. Jeapes, the opinion of the medical man was ad- 
 mitted to prove the effect upon the wife of the slanderous story 
 spread abroad by her husband. 
 
 HEARING IN CAMERA : A point that is liable to arise fre- 
 quently because of the desire of litigants to avoid publicity and 
 which has already arisen several times before myself is whether or 
 not matrimonial suits may be tried in camera. The law on this sub- 
 ject is to be found in Scott v. Scott, [1913] A.C. 417. It is there 
 laid down that the Court has no authority on the ground of 
 public decency to try actions with closed doors unless authorized by 
 statute to do so; unless it is strictly necessary because justice can- 
 not be attained if the case is tried in public. To this rule there are 
 two exceptions: (1) Proceedings respecting the wardship of in- 
 fants, and (2) Where lunatics are involved. The law as stated in 
 the books of practice published prior to Scott v. Scott cannot be 
 relied upon. 
 
 DECREE ABSOLUTE : By sec. 52 of the original Act of 1857 
 a decree of dissolution became absolute as soon as made. By sec. 
 7 of the Act of 1860 this was changed so that the decree in the first 
 instance should be a decree nisi not to be made absolute for such 
 time as the Court might by general or special order direct, but not 
 less than three months. This latter Act was to continue in force 
 only to the 31st of July, 1862, but in that year, by c. 81, it was made 
 perpetual. A further change was made by the 1866 Act, c. 32, s. 3, 
 by which a decree nisi is not to be made absolute for six months, 
 with power to reduce the time to not less than three months; 
 Watton v. Watton (1866) L.R. 1 P. & D. 227; and so the law stands 
 today. This time will not be shortened unless under special cir- 
 cumstances; Fitzgerald v. Fitzgerald, L.R. 3 P. & D. 136; Rip- 
 pingall v. Rippingall, 48 L.T.R. 126; Shelton v. Shelton, 20 
 L.T.R. 232. 
 
 Until the decree is made absolute the marriage tie is not dis- 
 solved ; Ellis V. Ellis (1883) 8 P. D. 188, but when made absolute 
 it reflects back to the date of the decree nisi; Prole v. Soady, L.R. 
 3 Ch. 220. Sec. 57 of the Act states when the parties are at liberty 
 to marry again. That is — 
 
 1. When the time for appeal has expired without appeal ; 
 
 2. In case of an appeal, when, 
 
 (a) the appeal has been dismissed, or 
 
 (b) results in the dissolution of the marriage. 
 
 Sec. 57 is to be construed in connection with the 1868 Act, ss. 
 3 & 4, with reference to the time for appealing. 
 
 INTERVENING: By section 7 of the 1860 Act, any person 
 may intervene during the time which must- elapse before the 
 decree nisi can be made absolute and show cause why the decree 
 should not be made absolute upon two grounds: 
 
 24
 
 1. That the decree nisi had been obtained by colhision; 
 
 2. That material facts had not been brought before the Court. 
 The motion should be made to the Court at a Wednesday sitting. 
 The procedure to be followed is detailed in Divorce Rules 67 to 72. 
 "Any person" in above Act does not include the respondent : Sfoate 
 V. Stoate, 2 Sw. & Tr. 384; For Practice see Brawn & Watts, 192 
 et seq. and Hall on Divorce 433, et seq. 
 
 After the expiration of the time limited by the decree nisi, 
 the party in whose favor the decree has been made may make a 
 motion to have the decree made absolute. Divorce Rule 73 tells how 
 this motion should be made. It is a motion to the Court at a Wed- 
 nesday sitting upon affidavits. It is a step in the cause and should 
 be made within a reasonable time after the explication of the time 
 limited by the decree nisi, otherwise the respondent may be en- 
 titled to have the petition dismissed for want of prosecution ; Ousey 
 V. Ousey (1875) 1 P.D. 56; 33 L.T. 789; Leivis v. Lewis, [1892] 
 P. 212. A motion to dismiss is the respondent's only remedy, 
 because a decree absolute can only be applied for by the innocent 
 party. 
 
 SHOWING CAUSE BY RESPONDENT : It is not clear what 
 right the respondent has to be heard against the application for a 
 decree absolute. Stoate v. Stoate, 2 Sw. & Tr. 384, is a decision 
 against the right, while Boulton v. Boulton, 2 Sw. & Tr. 405, is in 
 favour of it. It is probable that if infoi'mation were presented to 
 the Court which showed either that the decree nisi should not have 
 been made, or adultery since it was pronounced, no matter by whom 
 supplied, the Court would hold its hand until the matter was 
 cleared up. 
 
 APPEAL : The question of the right of appeal and to what 
 Court an appeal lies is by no means free from difficulty. A right of 
 appeal must be conferred by express enactment. It does not exist in 
 the nature of things; Atty. Gen. v. Sillem, 10 H.L.C. 704; Sandback 
 Charity v. North Staffordshire Ry. 3 Q.B.D. 1-4 and per Osier, 
 J.A., Reg. v. Eli, 13 A.R. at 529. It is a matter of substance, not a 
 mere matter of procedure : Colonial Sugar Co. v. Irving, [1905] 
 A.C. 369; Doran v. Jewell, 49 S.C.R. 88. It follows that if a right 
 of appeal exists, it must be derived from the Imperial Divorce 
 Legislation in force in this Province, or from Provincial legislation, 
 because manifestly there is no Dominion legislation on the subject. 
 
 Sections 9 and 10 of the 1857 Act gave the Judge Ordinary full 
 authority to try all actions except in cases of dissolution and nullity 
 both of which were to be heard and determined by three or more 
 Judges of the Court. Sec. 55 gave a right of appeal to the Full 
 Court in all cases where the Judge Ordinary might act alone. This 
 excluded petitions for dissolution and nullity because these peti- 
 tions could not be dealt with by him alone, but must be heard before 
 three or more Judges. 
 
 25
 
 Sec. 56 of the 1857 Act gave a right of appeal to the Lords 
 from any decision of the Full Court on a petition for dissolution of 
 marriage and sec. 17 of the Act of 1858 made it clear that this sec. 
 56 also applied to nullity petitions. 
 
 The Act of 1860, c. 144, extended the powers of the Judge 
 Ordinary. It gave him the power to hear all matters arising in the 
 Court including petitions for dissolution and nullity, which there- 
 tofore could only be heard by the Full Court of three Judges. 
 
 The general effect of the Act of 1860 was to give a right of 
 appeal from the Judge Ordinary to the Full Court in all cases 
 except with respect to petitions for dissolution or nullity and as to 
 these sec. 3 gave a right of appeal direct to the Lords. 
 
 Sections 56 of the original Act and 3 of the 1860 Act were 
 repealed by the 1868 Act, c. 77, and new sections substituted which, 
 however, made no material change in the substance of the law 
 respecting appeals. 
 
 The result of these several enactments may be summarized as 
 follows : Sec. 55 of the Act of 1857 gives a right of appeal from 
 the Judge Ordinary to the Full Court within three months in all 
 matters except dissolution and nullity, and its decision is final. 
 Sec. 3 of the Act of 1868, c. . 7, gives a right of appeal to the House 
 of Lords direct from the Judge Ordinary in dissolution or nullity 
 matters. In those cases there is no appeal to the Full Court pro- 
 vided for. In this Province there was no Court having appellate 
 jurisdiction on the 15th July, 1870. Such jurisdiction was first 
 conferred in 1872 upon the Court of Queen's Bench. We had not 
 then and have not now any Court at all corresponding to the Full 
 Court of Divorce and Matrimonial Causes created by the 1857 Act. 
 
 The existence of appellate jurisdiction has been already chal- 
 lenged in one Province. The Full Court of British Columbia held 
 in Scott V. Scott, (1891) 4 B.C.R. 316, that no appeal lay to it from 
 a decree a vinculo made by a single Judge. The law in force in 
 B.C. is the Acts of 1857 and 1858 alone without the amending and 
 supplementary Acts passed prior to the 15th July, 1870. The 
 essential circumstances, however, with respect to appeal in B.C. 
 are the same as in Manitoba ; that is to say, the Divorce Acts give 
 the right of appeal to the Full Court in all matters other than dis- 
 solution and nullity and to the Lords in these matters. The B.C. 
 Court held that the term "Full Court" as used in the Act did not 
 mean the Full Court of B.C., so that even in a case which came 
 under sec. 55 of the Act of 1857 there would be no appeal. After 
 the jurisdiction of the Supreme Court of B.C. in divorce had been 
 affirmed by the Privy Council in Watt v. Watt, [1908] A.C. 573, the 
 question of the right to appeal to the Full Court from the decision 
 of a Judge of first instance came up again in Brown v. Brorvn, 
 (1909) 14 B.C.R. 142. The Judge of first instance had in that case 
 
 26
 
 made an order for interim alimony from which the respondent 
 appealed to the Full Court. The three Judges who constituted the 
 Court held, following Scott v. Scott, supra, that no appellate juris- 
 diction in divorce had been conferred on any Court in B.C. by 
 Imperial, Dominion or Provincial legislation. 
 
 In Walkei' v. Walker, 28 M.R. 495, an appeal was entertained 
 by the Court of Appeal in a nullity petition. The sole ground of 
 appeal was as to whether or not the Imperial divorce laws are in 
 force in this Province. The question of the appellate jurisdiction 
 of the Court of Appeal was not raised or discussed, so the 
 question cannot be said to have been decided in that case. The 
 case of Board v. Board, 13 Alta., 362, [1919] A.C. 956, which 
 affirmed the jurisdiction of the Supreme Court of Alberta in matters 
 of divorce, was decided in the appellate division not by way of 
 appeal from the lower Court but upon a reference by Mr. Justice 
 Walsh. In Fletcher v. Fletcher, [1920] 1 W.W.R. 5, an appeal as 
 to the jurisdiction of the Court in divorce matters was entertained 
 by the Court of Appeal of Saskatchewan from the decision of the 
 trial Judge dismissing a petition for a dissolution of marriage for 
 want of jurisdiction. As in each of the cases Walker v. Walker and 
 Board v. Board, no question was raised as to the jurisdiction of 
 the Court of Appeal. 
 
 Both divorce and criminal law are matters within the exclu- 
 sive legislative authority of the Dominion. But there is this dif- 
 ference, that while procedure in criminal matters belongs exclu- 
 sively to the Dominion, procedure in civil matters, which includes 
 divorce, belongs exclusively to the Provinces. If the right of appeal 
 were a matter of procedui-e only, the question would be easy of 
 solution. Each of the Western Provinces has created a Court of 
 Appeal and has given a right of appeal thereto from the judgment, 
 order or decree of a single Judge or the verdict of a jury in terms 
 ample in scope to include a decree pronounced upon a divorce peti- 
 tion. But is a right of appeal a matter of procedure or is it a matter 
 of substantive law ? If it is not a matter of procedure the Provinces 
 cannot legislate concerning it (unless it can be said to belong to 
 the administration of justice within the Provinces, as to which I 
 shall refer presently) and the Provincial legislation referred to 
 would be ineffectual to give a right of appeal in a divorce suit. This 
 very point was dealt with in Colonial Sugar Refining Co. v. Irving, 
 already alluded to, where it was held by the Privy Council that an 
 Australian statute which limited the right of appeal to the High 
 Court of the Commonwealth did not apply to litigation pending 
 when the Act came into force, because appeal is a matter of sub- 
 stantive right and not a mere matter of procedure. 
 
 Then does the exclusive authority of the Provinces over the 
 administration of justice include the right to legislate with respect 
 to appeals in divorce actions? The two British Columbia cases, 
 
 27
 
 Scott V. Scott and Brown v. Brown, referred to supra, are decisions 
 to the contrary. The question has not as yet come before the Courts 
 of any other Province, so far as I am aware, but a side-light is 
 thrown upon it by several decisions as to appeals in criminal cases, 
 in all of which it has been held that the Provincial Legislatures were 
 powerless to give a right of appeal in criminal matters notwith- 
 standing the right of the Provinces to legislate respecting the 
 administration of justice. Reference may be made to such cases 
 as Reg. v. Eli, 13 A.R. 526; Reg. v. McAuley, 14 O.K. 643; Queen v. 
 De Coste, 21 N.S.R. 216; Rex v. Carroll, 14 B.C.R. 116; Re Tider- 
 ington, 17 B.C.R. 81; Reg. v. Beale, 11 M.R. 448; Rex v. Harvie, 
 18 B.C.R. 5. 
 
 It is impossible to say whether in any of the above cases it was 
 thought that the Provincial jurisdiction in matters of criminal 
 appeal was excluded because it concerned criminal procedure or 
 because it related to substantive rights. It was not necessary to 
 decide that question as both criminal law and criminal procedure 
 are reserved to the Dominion. If criminal appeal was not thought 
 to be a matter of procedure then the conclusion must have been 
 that it was included under the reservation to the Dominion of 
 criminal law and was not transferred to the Provinces as part of 
 the administration of justice. 
 
 There is another view of the question which merits attention 
 and which apparently was not considered by the British Columbia 
 Court. By the Divorce Acts which have been made a part of the 
 substantive law of the Western Provinces a right of appeal is con- 
 ferred upon every dissatisfied suitor. The principle upon which 
 Watt V. Watt, Walker v. Walker, and Board v. Board were decided 
 is that where a right has been introduced into the substantive law 
 of a Province it is the duty of the Superior Courts of such Province 
 to entertain and give effect to proceedings to make that right oper- 
 ative whether they do or do not correspond in description or con- 
 stitution with the Courts named in the Act by which the right is 
 given. 
 
 The Court of King's Bench has no resemblance to the Court of 
 Divorce and Matrimonial Causes established by the Act of 1857, 
 but the right of divorce having become part of the substantive law 
 of this Province the Court of King's Bench not only has the juris- 
 diction but is impressed with the duty to enforce the right. The 
 same law which gives the right of divorce also gives the dissatisfied 
 suitor the substantive right of appeal. We have no Court which 
 corresponds to the Full Court of Divorce and Matrimonial Causes 
 in England to which a final appeal is given in all matters except 
 dissolution or nullity, nor, of course, any Court which corresponds 
 to the House of Lords, to which an appeal is allowed in England in 
 these cases. But the right of appeal exists and we have a Court 
 
 28
 
 which possesses the necessary appellate jurisdiction to make the 
 right operative. 
 
 It is not a question of giving a right of appeal. The right of 
 appeal is as much a part of the law which was brought into force 
 in these Provinces as the right to divorce itself is. It is a mere 
 question of the Court by which the right will be made operative. 
 The Provinces in the exercise of their control over the administra- 
 tion of justice and the organization and constitution of the Courts 
 have established Courts with the requisite jurisdiction. Ai-e not the 
 Courts of Appeal so established not only vested with the jurisdiction 
 but is it not their duty to entertain appeals and so malte the right 
 conferred by the statute effective just as the Superior Courts of 
 first instance are bound to make operative the right of divorce con- 
 conferred by the same statute? If these Courts cannot entertain ap- 
 peals in divorce suits, then the only remedy of a dissatisfied suitor 
 is an appeal by leave to the Privy Council, which in the vast ma- 
 jority of cases would, by reason of the expense involved, be equiva- 
 lent to a denial of the right altogether. 
 
 I have now given the reasons pro and con which have occurred 
 to me. My own view is that those in favor of the exercise of juris- 
 diction in appeal by the Provincial Courts of Appeal are entitled to 
 prevail. Be that as it may, it must be conceded that the path of 
 the dissatisfied suitor in a divorce suit is at present beset with 
 doubts and difficulties. 
 
 The interests involved are too important to be left clouded in 
 so much uncertainty and the matter ought to be cleared up by 
 legislation by the Dominion Parliament. 
 
 JURISDICTION OF REFEREE : I propose to touch on but 
 one other point, and that is the jurisdiction of the Referee in 
 Chambers in divorce proceedings. The original Act of 1857 is 
 silent as to the power of the Judge Ordinary to sit and transact 
 business in Chambers. The Act of 1858, c. 108, however, provided 
 that it should be lawful for him to sit in Chambers for the despatch 
 of such parts of the business of the Court as could in his opinion 
 wtih advantage to the suitors be heard in Chambers ; and while 
 sitting in Chambers he was given the same powers and jurisdiction 
 with respect to the business to be brought before him as if sitting 
 in open Court. 
 
 Divorce Rule 75 makes the King's Bench rules applicable to 
 divorce proceedings, in so far a'S they are applicable, in all cases 
 not provided for in the divorce rules. By King's Bench Rule 27 : 
 
 "The Referee in Chambers in regard to all actions and matters 
 in Court shall be and hereby is empowered and required to do such 
 things, transact all such business and exercise all such authority 
 and jurisdiction in respect to the same as by virtue of any statute 
 or custom or by the rules or practice of the Court or any of them 
 respectively are or may be done, transacted or exercised by him or 
 by any Judge of Court sitting in Chambers." 
 
 29
 
 Then follows a number of exceptions, amongst which are 
 
 "all matters in respect of which the jurisdiction of a Judge in 
 Chambers is not derived from legislation of the Legislature of 
 Manitoba." 
 
 By section 43 of the King's Bench Act as amended: 
 
 "The Judges of the Court shall in rotation or otherwise as 
 they may agree among themselves sit in Chambers or elsewhere, 
 and shall transact all such business as may be transacted by a 
 single Judge out of Court, subject to the right of appeal as provided 
 in this Act and the rules from time to time in force." 
 
 Rule 455 specifies what business shall be disposed of in 
 Chambers. Such business includes, s-s. (d) business "relating to 
 the conduct of actions or matters." And Rule 462 provides that 
 
 "a Judge sitting in Chambei-s may exercise the same powers and 
 jurisdiction, in respect of the business brought before him, as is 
 exercised by the Court ; all orders made by a Judge in Chambers 
 are to have the same force and effect of orders of the Court; * * *" 
 
 The question of what powers a Judge may exercise in Court 
 or in Chambers is a matter of procedure and therefore with respect 
 to divorce proceedings is within the competence of the Provincial 
 legislature. 
 
 It seems to me sec. 43 of the King's Bench Act and Rules 455 
 and 462 confer upon a Judge in Chambers all the powers 
 which the Judge Ordinary derived from the Act of 1858, 
 c. 108, and therefore that "the jui'isdiction of a Judge in 
 Chambers" in matters of divorce is "derived from legislation of 
 the legislature of Manitoba." Although in the absence of such 
 legislation recourse might be had to the Imperial Act. It follows 
 that the Referee in Chambers has all the powers in divorce matters 
 conferred by Rule 27. 
 
 I have now dealt with the principal matters which were likely 
 to prove troublesome to the young practitioner. There remain a 
 great many questions still untouched, but this lecture has already 
 attained a length much beyond what I originally intended, and 
 perhaps what you were prepared to endure, and I will in mercy 
 forbear to deal with them. 
 
 30
 
 APPENDIX 
 
 Divorce Act of 1857 with amendments and additions made 
 prior to the 15th July, 1870, omitting such provisions as are 
 inapplicable to Canada. 
 
 20 & 21 Vict. Chapter 85. 
 
 An Act to amend the law relating to Divorce and Matrimonial 
 Causes in England, 28th August, 1857. 
 
 Whereas it is expedient to amend the law relating to Divorce 
 and to constitute a Court with exclusive jurisdiction in matters 
 matrimonial in England and with authority in certain cases to 
 decree the dissolution of marriage : Be it therefore enacted by the 
 Queen's Most Excellent Majesty by and with the advice and consent 
 of the Lords Spiritual and Temporal and Commons in this present 
 Parliament assembled and by the authority of the same as follows : 
 
 1. (Act to come into operation on day not sooner than 1st 
 January, 1858, fixed by Order-in-Council made one month prior to 
 day appointed.) 
 
 2. "As soon as this Act shall come into operation all jurisdic- 
 tion now exercisable by any Ecclesiastical Court in England in 
 respect of divorces a mensa et thoro, suits of nullity of marriage, 
 suits of jactitation of marriage, suits for restitution of conjugal 
 rights, and in all causes, suits and matters matrimonial shall cease 
 to be exercisable except so far as relates to the granting of mar- 
 riage licenses which may be granted as if this Act had not been 
 passed." 
 
 3. (Decrees or orders of Ecclesiastical Courts enforceable by 
 the Court of Divorce and Matrimonial Causes.) 
 
 4. (Suits pending in Ecclesiastical Courts transferred to said 
 Court.) 
 
 5. (Provides for suits heard and standing for judgment when 
 Act comes into operation.) 
 
 6. "As soon as this Act shall come into operation all jurisdic- 
 tion now vested in or exercisable by any Ecclesiastical Court or 
 person in England in I'espect of divorces a mensa et thoro, suits of 
 nullity of marriage, suits for restitution of conjugal rights or 
 jactitation of marriage and in all causes, suits and matters matri- 
 monial except in respect of marriage licenses shall belong to and be 
 
 31
 
 vested in Her Majesty and such jurisdiction together with the jur- 
 isdiction conferred by this Act shall be exei'cised in the name of 
 Her Majesty in a Court of Record to be called 'The Court for 
 Divorce and Matrimonial Causes.' " 
 
 7. "No decree shall hereafter be made for a decree a mensa 
 et thoro but in all cases in which a decree for a divorce a mensa et 
 thoro might now be pronounced the Court may pronounce a decree 
 for a judicial separation which shall have the same force and the 
 same consequences as a divorce a mensa et thoro now has." 
 
 8. (Judges of the Court, the Lord Chancellor, the Chief Jus- 
 tices of the Queen's Bench and Common Pleas, the Chief Baron of 
 the Exchequer, the Senior Puisne Judge in each of these Courts 
 and the Judge of the Court of Probate.) (By 22 & 23 Vict. (1859) 
 c. 61, s. 1, all the Judges of the Queen's Bench, Common Pleas and 
 Exchequer, were also made Judges of the Court.) 
 
 9. "The Judge of the Court of Probate shall be called the 
 Judge Ordinary of the said Court and shall have full authority 
 whether alone or with one or more of the other Judges of the said 
 Court to hear and determine all matters arising therein except 
 petitions for the dissolving of or annulling marriage and applica- 
 tions for new trials of questions or issues before a jury, bills of 
 exception, special verdicts and special cases and except as aforesaid 
 may exercise all the powers and authority of the said Court." 
 
 (21 & 22 Vict. (1858) c. 108, ss. 1, 2 & 3 provide for the Judge 
 Ordinary sitting in Chambers and his powers are enlarged by 23 
 & 24 Vict. (1860) c. 144, see post.) 
 
 10. "All petitions either for the dissolution or for a sentence 
 of nullity of marriage and applications for new trials of questions 
 or issues before a jury shall be heard and determined by three or 
 more Judges of the said Court, of whom the Judge of the Court of 
 Probate shall be one." 
 
 (By 23 & 24 Vict. (18G0) c. 144, ss. 1 & 2, the Judge Ordinary 
 is given the power to alone hear and determine all matters arising 
 in the Court with the light to assistance when, deemed expedient 
 of one other Judge, see post.) 
 
 11. (During temporary absence of Judge Ordinary Lord 
 Chancellor may authorize Master of Rolls, Judge of Admiralty 
 Court, Lord Justice or Vice Chancellor, or any Judge of a Supreme 
 Court to act.) 
 
 12. (Place of sitting to be fixed by Order-in-Council.) 
 
 13. (Seal to be provided.) 
 
 14. (Registrars and Officers of Probate to attend sittings and 
 to assist as directed by rules and orders under the Act; and see as 
 t6 powers 21 & 22 Vict. (1858) c. 108, s. 4.) 
 
 32
 
 15. (Advocates and Pi'octors of Ecclesiastical Courts and all 
 barristers, attorneys, and solicitors entitled to practice in Court 
 with same precedence as they have in Privy Council.) 
 
 16. "A sentence of judicial separation (which shall have the 
 effect of a divorce a me)isa et thoro under the existing law and such 
 other legal effect as herein mentioned) may be obtained either by 
 the husband or the wife on the ground of adultery, or cruelty, or 
 desertion without cause for two years and upwards." 
 
 17. "Application for restitution of conjugal rights or for 
 judicial separation on any one of the grounds aforesaid may be 
 made by either husband or wife by petition to the court (repealed 
 as to Judges of Assize 21 & 22 Vict. (1858) c. 108, s. 19) and the 
 Court or Judge to which such petition is addressed, on being satis- 
 fied of the truth of the allegations therein contained, and that there 
 is no legal ground why the same should not be granted, may decree 
 such restitution of conjugal rights or judicial separation accord- 
 ingly and where the application is by the wife may make any order 
 for alimony which shall be deemed just * * * ." 
 
 18. 19, 20. (Provisions as to Assize Judges repealed 21 & 22 
 Vict. (1858) c. 108, s. 19.) 
 
 21. "A wife deserted by her husband may at any time after 
 such desertion, if resident within the Metropolitan District, apply 
 to a Police Magistrate, or if resident in the country, to the Justices 
 of Petty Sessions, or in either case to the Court, for an order to 
 protect any money or property she may acquire by her own lawful 
 industry, and property which she may become possessed of, after 
 such desertion, against her hu.sband or his creditors, or any pei'son 
 claiming under him ; and such Magistrate or Justices or Court, if 
 satisfied of the fact of such desertion, and that the same was with- 
 out reasonable cause, and that the wife is maintaining herself by 
 her own industry or property, may make and give to the wife an 
 order protecting her earnings and property acquired since the 
 commencement of such desertion, from her husband and all credi- 
 tors and persons claiming under him, and such earnings and prop- 
 erty shall belong to the wife as if she were a feme sole : Provided 
 always, that every such order, if made by a Police Magistrate or 
 Justices at Petty Sessions, shall, within ten days after the making 
 thereof, be entered with the Registrar of the County Court within 
 whose jurisdiction the wife is resident; and that it shall be lawful 
 for the husband, and any creditor or other person claiming under 
 him, to apply to the Court, or to the Magistrate or Justices by 
 whom such order was made, for the discharge thereof : Provided, 
 also, that if the husband or any creditor of or person claiming 
 under the husband shall seize or continue to hold any property of 
 the wife after notice of any such order, he shall be liable, at the 
 suit of the wife (which she is hereby empowered to bring), to 
 
 33
 
 restore the specific property, and also for a sum equal to double the 
 value of the property so seized or held after such notice as afore- 
 said : If any such order of protection be made, the wife shall dur- 
 ing the continuance thereof be and be deemed to have been, during 
 such desertion of her, in the like position in all respects, with re- 
 gard to property and contracts, and suing and being sued, as she 
 would be under this Act if she obtained a decree of judicial separa- 
 tion." 
 
 (This section 21 is amplified by 27 & 28 Vict. (1864) c. 44, s. 1, 
 see post.) 
 
 22. "In all suits and proceedings, other than proceedings to 
 dissolve any marriage, the said Court shall proceed and act and give 
 relief on principles and rules which in the opinion of the said Court 
 shall be as nearly as may be conformable to the principles and rules 
 on which the Ecclesiastical Courts have heretofore acted and given 
 relief, but subject to the provisions herein contained and to the 
 rules and orders under this Act." 
 
 23. "Any husband or wife, upon the application of whose wife 
 or husband, as the case may be, a decree of judicial separation has 
 been pronounced, may, at any time thereafter, present a petition 
 to the Court praying for a reversal of such decree on the ground 
 that it was obtained in his or her absence, and that there was reas- 
 onable ground for the alleged desertion, where desertion was the 
 ground of such decree ; and the Court may, on being satisfied of the 
 truth of the allegations of such petition, reverse the decree accord- 
 ingly, but the reversal thereof shall not prejudice or affect the 
 rights or remedies which any other person would have had in case 
 such reversal had not been decreed, in respect of any debts, con- 
 tracts, or acts of the wife incurred, entered into, or done between 
 the times of the sentence of separation and of the reversal thereof." 
 
 24. "In all cases in which the Court shall make any decree or 
 order for alimony, it may direct the same to be paid either to the 
 wife herself or to any trustee on her behalf, to be approved by the 
 Court, and may impose any terms or restrictions which to the 
 Court may seem expedient, and may from time to time appoint a 
 new trustee, if for any reason it shall appear to the Court expedient 
 so to do." 
 
 25. "In every case of a judicial separation the wife shall, from 
 the date of the sentence and whilst the separation shall continue, 
 be considered as a feme sole with respect to property of every 
 
 .description which she may acquire or which may come to or devolve 
 upon her; and such property may be disposed of by her in all 
 respects as a feme sole, and on her decease the same shall, in case 
 she shall die intestate, go as the same would have gone if her hus- 
 band had been then dead; provided, that if any such wife should 
 again cohabit with her husband, all such property as she may be 
 
 34
 
 entitled to when such cohabitation shall take place shall be held to 
 her separate use, subject, however, to any agreement in writing 
 made between herself and her husband whilst separated." 
 
 (For provisions as to protection orders, see 21 & 22 Vict. 
 (1858) c. 108, ss. 6, 7, 8, 9 and 10.) 
 
 26. "In every case of a judicial separation the wife shall, 
 whilst so separated, be considered as a feme sole for the purposes 
 of contract, and wrongs and injuries, and suing and being sued in 
 any Civil proceeding; and her husband shall not be liable in respect 
 of any engagement or contract she may have entered into, or for 
 any wrongful act or omission by her, or for any costs she may incur 
 as plaintiff or defendant'; provided, that where upon any such 
 judicial separation alimony has been decreed or ordered to be paid 
 to the wife, and the same shall not be duly paid by the husband, he 
 shall be liable for necessaries supplied for her use; provided, also, 
 that nothing shall prevent the wife from joining, at any time dur- 
 ing such separation, in the exercise of any joint power given to 
 herself and her husband." 
 
 27. It shall be lawful for any husband to present a petition 
 to the said Court, praying that his marriage may be dissolved, on 
 the ground that his wife has since the celebration thereof, been 
 guilty of adultery ; and it shall be lawful for any wife to present a 
 petition to the said Court, praying that her marriage may be dis- 
 solved, on the ground that since the celebration thereof her hus- 
 band has been guilty of incestuous adultery, or of bigamy with 
 adultery, or of rape, or of sodomy or bestiality, or of adultery 
 coupled with such cruelty as without adultery would have entitled 
 her to a divorce a mensa et thoro, or of adultery coupled with de- 
 sertion, without reasonable excuse, for two years or upwards; and 
 every such petition shall state as distinctly as the nature of the 
 case permits the facts on which the claim to have such marriage 
 dissolved is founded : Provided that for the purposes of this Act 
 incestuous adultery shall be taken to mean adultery committed by 
 a husband with a woman with whom if his wife were dead he could 
 not lawfully contract marriage by reason of her being within the 
 prohibited degrees of consanguinity or affinity ; and bigamy shall 
 be taken to mean marriage of any person, being married, to any 
 other person during the life of the former husband or wife, whether 
 the second marriage shall have taken place within the Dominions 
 of Her Majesty or elsewhere." 
 
 28. "Upon any such petition presented by a husband the pe- 
 titioner shall make the alleged adulterer a co-respondent to the said 
 petition, unless on special grounds, to be allowed by the Court, he 
 shall be excused from so doing; and upon every petition presented 
 by a wife for dissolution of marriage the Court, if it see fit, may 
 direct that the person with whom the husband is alleged to have 
 
 35
 
 committed adultery be made a respondent ; and the parties or either 
 of them may insist on having the contested matters of fact tried 
 by a jury as hereinafter mentioned." 
 
 (Such respondent or co-respondent may be dismissed from the 
 suit for insufficient evidence. 21 & 22 Vict. (1858) c. 108, s. 11.) 
 
 29. "Upon any such petition for the dissolution of a marriage, 
 it shall be the duty of the Court to satisfy itself, so far as it reason- 
 ably can, not only as to the facts alleged, but also whether or no the 
 petitioner has been in any manner accessory to or conniving at the 
 adultery, or has condoned the same, and shall also enquire into any 
 countercharge which may be made against the petitioner." 
 
 30. "In case the Court, on the evidence in relation to any such 
 petition, shall not be satisfied that the alleged adultery has been 
 committed, or shall find that the petitioner has during the marriage 
 been accessory to or conniving at the adultery of the other party 
 to the marriage, or has condoned the adultery complained of, or 
 that the petition is presented or prosecuted in collusion with either 
 of the respondents, then and in any of the said cases the Court shall 
 dismiss the said petition." 
 
 31. "In case the Court shall be satisfied on the evidence that 
 the case of the petitioner has been proved, and shall not find that 
 the petitioner has been in any manner accessory to or conniving at 
 the adultery of the other party to the marriage, or has condoned 
 the adultery complained of, or that the petition is presented or 
 prosecuted in collusion with either of the respondents, then the 
 Court shall pronounce a decree declaring such marriage to be dis- 
 solved; Provided always, that the Court shall not be bound to 
 pronounce such decree if it shall find that the petitioner has during 
 the marriage been guilty of adultery, or if the petitioner shall, in 
 the opinion of the Court, have been guilty of unreasonable delay in 
 presenting or prosecuting such petition, or of cruelty towards the 
 other party to the marriage, or of having deserted or wilfully 
 separated himself or herself from the other party before the 
 adultery complained of, and without reasonable excuse or of such 
 wilful neglect or misconduct as has conduced to the adultery." 
 
 (Now a decree nisi in the first instance not to be made absolute 
 for six months with power to shorten time to not less than three 
 months, 23 & 24 Vict. (1860) c. 144, s. 7; and 29 & 30 Vict. (1866) 
 c. 32, s. 3. 
 
 Section 2 of the latter Act makes it lawful for the Court in a 
 suit for dissolution to grant a respondent who opposes the relief 
 sought, if a wife on the ground of her husband's adultery, cruelty 
 or desertion, or if a husband on the ground of his wife's adultery 
 or cruelty, the same relief as if he or she had been the petitioner. 
 By 21 & 22 Vict. (1858) c. 108, s. 11, the co-respondent or female 
 
 36
 
 respondent may be dismissed from suit for insufliciont evidence, 
 see post.) 
 
 32. "The Court may, if it shall think fit, on any such decree, 
 order that the husband shall to the satisfaction of the Court secure 
 to the wife such gross sum of money, or such annual sum of money 
 for any term not exceeding her own life, as, having regard to her 
 fortune (if any), to the ability of the hu.sband, and to the conduct 
 of the parties, it shall deem reasonable, and for that purpose may 
 refer it to any one of the conveyancing counsel of the Court of 
 Chancery to settle and approve of a proper Deed or Instrument to 
 be executed by all necessary parties; and the said Court may in 
 such case, if it shall see fit, suspend the pronouncing of its decree 
 until such Deed shall have been duly executed ; and upon any peti- 
 tion for dissolution of marriage the Court shall have the same 
 power to make interim orders for payment of money, by way of 
 alimony or otherwise, to the wife, as it would have in a suit insti- 
 tuted for judicial separation." 
 
 (29 & 30 Vict. (1866) c. 11, s. 1, empowers the Court upon a 
 decree for dissolution against a husband who- has no property to 
 order him to pay a monthly or weekly sum. See post.) 
 
 33. "Any husband may, either in a petition for dissolution of 
 marriage or for judicial separation, or in a petition limited to such 
 object only, claim damages from any person on the ground of his 
 having committed adultery with the wife of such petititioner, and 
 such petition shall be served on the alleged adulterer and the wife, 
 unless the Court shall dispense with such service, or direct some 
 other service to be substituted ; and the claim made by every such 
 petition shall be heard and tried on the same principles, in the same 
 manner, and subject to the same or the like rules and regulations as 
 actions for criminal conver-sation are now tried and decided in Courts 
 of Common Law ; and all the enactments herein contained with 
 reference to the hearing and decision of petitions to the Court shall, 
 so far as may be necessary, be deemed applicable to the hearing and 
 decision of petitions presented under this enactment ; and the dam- 
 ages to be recovered on any such petition shall in all cases be ascer- 
 tained by the verdict of a jury, although the respondents or either of 
 them may not appear; and after the verdict has been given the 
 Court shall have power to direct in what manner such damages 
 shall be paid or applied and to direct that the whole or any part 
 thereof shall be settled for the benefit of the children (if any) of 
 the marriage, or as a provision for the maintenance of the wife." 
 
 34. "Whenever in any petition presented by a husband the 
 alleged adulterer shall have been made a co-respondent, and the 
 adultery shall have been established, it shall be lawful for the Court 
 to order the adulterer to pay the whole or any part of the costs of 
 the proceedings." 
 
 37
 
 35. "In any suit or other proceeding for obtaining a judicial 
 separation or a decree of nullity of marriage, and on any petition 
 for dissolving a marriage, the Court may from time to time, before 
 making its final decree, make such interim orders, and may make 
 such provision in the final decree, as it may deem just and proper 
 with respect to the custody, maintenance and education of the 
 children the marriage of whose parents is the subject of such suit 
 or other proceeding, and may, if it shall think fit, direct proper 
 proceedings to be taken for placing such children under the protec- 
 tion of the Court of Chancery." 
 
 (22 & 23 Vict. (1859) c. 61, s. 4, empowers the Court or peti- 
 tion to make like orders after final decree. See post.) 
 
 36. "In questions of fact arising in proceedings under this Act 
 it shall be lawful for, but except as hereinbefore provided, not 
 obligatory upon, the Court to direct the truth thereof to be deter- 
 mined before itself, or before any one or more of the Judges of the 
 said Court, by the verdict of a special or common jury." 
 
 37. "The Court, or any Judge thereof, may make all such rules 
 and orders upon the Sheriff or any other person for procuring the 
 attendance of a special or common jury for the trial of such ques- 
 tion as may now be made by any of the Superior Courts of Com- 
 mon Law at Westminster, and may also make any other orders 
 which to such Court or Judge may seem requisite; and every such 
 jury shall consist of persons possessing the like qualifications, and 
 shall be struck, summoned, balloted for, and called in like manner, 
 as if such jury were a jury for the trial of any cause in any of the 
 said Superior Courts; and every juryman so summoned shall be 
 entitled to the same rights, and subject to the same duties and lia- 
 bilities, as if he had been duly summoned for the trial of any such 
 cause in any of the said Superior Courts ; and every party to any- 
 such proceeding shall be entitled to the same rights as to challenge 
 and otherwise as if he were a party to any such cause." 
 
 38. "When any such question shall be so ordered to be tried 
 such question shall be reduced into writing in such form as the 
 Court shall direct, and at the trial the jury shall be sworn to try 
 the said question, and a true verdict to give thereon according to 
 the evidence; and upon every such trial the Court or Judge shall 
 have the same powers, jurisdiction, and authority as any Judge of 
 any of the said Superior Courts sitting at nisi prius." 
 
 39. "Upon the trial of any such question or of any issue under 
 this Act a Bill of Exceptions may be tendered, and a general or 
 special verdict or verdicts, subject to a special case, may be re- 
 turned, in like manner as in any cause tried in any of the said 
 Superior Courts; And every such Bill of Exceptions, special ver- 
 dict, and special case respectively shall be stated, settled, and sealed 
 in like manner as in any cause tried in any of the said Superior 
 
 38
 
 Courts, and where the trial shall not have been had in the Court 
 for Divorce and Matrimonial Causes shall be returned into such 
 Court without any Writ of Error or other writ; and the matter of 
 law in every such Bill of Exceptions, special verdict, and special 
 case shall be heard and determined by the Full Courts, subject to 
 such right of appeal as is hereinafter given in other cases." 
 
 40. "It shall be lawful for the Court to direct one or more issue 
 or issues to be tried in any Court of Common Law, and either be- 
 fore a Judge of Assize in any County or at the sittings for the trial 
 of causes in London or Middlesex, and either by a special or com- 
 mon jury, or in like manner as is now done by the Court of 
 Chancery." 
 
 41. "Every person seeking a decree of nullity of marriage, or 
 a decree of judicial separation, or a dissolution of marriage, or 
 decree in a suit of jactitation of marriage, shall, together with the 
 petition or other application for the same, file an affidavit verifying 
 the same so far as he or she is able to do so, and stating that there 
 is not any collusion or connivance between the deponent and the 
 other party to the marriage." 
 
 42. "Every such petition shall be served on the party to be 
 affected thereby, either within or without Her Majesty's Do- 
 minions, in such manner as the Court shall by any general or 
 special oi'der from time to time direct, and for that purpose the 
 Court shall have all the powers conferred by any .statute on the 
 Court of Chancery: Provided always, that the said Court may 
 dispense with such service altogether in case it shall seem necessary 
 or expedient so to do." 
 
 43. "The Court may, if it shall think fit, order the attendance 
 of the petitioner, and may examine him or her, or permit him or 
 her to be examined or cross-e.xamined on oath on the hearing of 
 any petition, but no such petitioner shall be bound to answer any 
 question tending to show that he or she has been guilty of adultery." 
 
 (By 22 & 23 Vict. (1859) c. 61, s. 6, both husband and wife 
 made competent and compellable witnesses as to cruelty or deser- 
 tion on wife's petition for dissolution on ground of adultery coupled 
 with either. Now by Evidence Further Amendment Act (1869) 
 32 & 33 Vict. c. 68, parties are competent witnesses for all pur- 
 poses.) 
 
 44. "The Court may from time to time adjourn the hearing of 
 any such petition, and may require further evidence thereon, if it 
 shall see fit so to do." 
 
 45. "In any case in which the Court shall pronounce a .sentence 
 of Divorce or Judicial separation for adultery of the wife, if it 
 shall be made appear to the Court that the wife is entitled to any 
 
 39
 
 property either in possession or reversion, it shall be lawful for the 
 Court, if it shall think proper, to order such settlement as it shall 
 think reasonable to be made of such property or any part thereof, 
 for the benefit of the innocent party, and of the children of the 
 marriage, or either or any of them." 
 
 (By 22 & 23 Vict. (1859) c. 61, s. 5, Court is empowered after 
 a final decree of nullity or dissolution to inquire as to marriage 
 settlements and to make orders as to the settled property and by 
 23 & 24 Vict. (1860) c. 144, s. 6, instruments executed pursuant to 
 sec. 45 are validated notwithstanding coverture or disability. See 
 post.) 
 
 46. "Subject to such rules and regulations as may be estab- 
 lished as herein provided, the witness in all proceedings before the 
 Court where their attendance can be had shall be sworn and ex- 
 amined orally in open Court: Provided that parties, except as 
 hereinbefore provided, shall be at liberty to verify their respective 
 cases in whole or in part by affidavit, but so that the deponent in 
 every such affidavit shall, on the application of the opposite party 
 or by direction of the Court, be subject to be cross-examjned by or 
 on behalf of the opposite party orally in open Court, and after such 
 cross-examination may be re-examined orally in open Court as 
 aforesaid by or on behalf of the party by whom such affidavit was 
 filed." 
 
 47. "Provided, that where a witness is out of the jurisdiction 
 of the Court, or where, by reason of his illness or from other cir- 
 cumstances, the Court shall not think fit to enforce the attendance 
 of the witness in open Court, it shall be lawful for the Court to 
 order a commission to issue for the examination of such witness 
 on oath, upon interrogatories or otherwise, or if the witness be 
 within the jurisdiction of the Court to order the examination of 
 such witness on oath, upon interrogatories or otherwise, before any 
 officer of the said Court, or other person to be named in such order 
 for the purpose ; and all the powers given to the Courts of Law at 
 Westminster by the Acts of the thirteenth year of King George the 
 Third, chapter sixty-three, and of the first year of King William 
 the Fourth, chapter twenty-two, for enabling the Courts of Law at 
 Westminster to issue commissions and give orders for the examin- 
 ation of witnesses in actions depending in such Courts, and to en- 
 force such examination, and all the provisions of the said Acts, 
 and of any other Acts for enforcing or otherwise applicable to such 
 examination and the witnesses examined, shall extend and be ap- 
 plicable to the Court and to the examination of witnesses under 
 the commissions and orders of the said Court, and to the witnesses 
 examined, as if such Court were one of the Courts of Law at West- 
 minster, and the matter before it were an action pending in such 
 Court." 
 
 40
 
 48. "The rules of evidence observed in the Superior Courts of 
 Common Law at Westminster shall be applicable to and observed 
 in the trial of all questions of fact in the Court." 
 
 49. "The Court may, under its seal, issue Writs of Subpoena 
 or Subpoena duces tecum, commanding the attendance of witnesses 
 at such time and place as shall be therein expressed ; and such writs 
 may be served in any part of Great Britain or Ireland ; and every 
 person served with such writ shall be bound to attend, and to be 
 sworn and give evidence in obedience thereto, in the same manner 
 as if it had been a Writ of Subpoena or Subpoena duces tecum 
 issued from any of the said Superior Courts of Common Law in a 
 cause pending therein, and served in Great Britain or Ii'eland, as 
 the case may be : Provided that any petitioner required to be 
 examined, or any person called as a witness or required or desiring 
 to make an affidavit or deposition under or for the purposes of this 
 Act, shall be permitted to make his solemn affirmation or declara- 
 tion instead of being sworn in the circumstances and manner in 
 which a person called as a witness or desiring to make an affidavit 
 or deposition would be permitted so to do under the 'Common Law 
 Procedure Act, 1854,' in cases within the provisions of that Act." 
 
 50. "All persons wilfully deposing or affirming falsely in any 
 proceedings before the Court shall be deemed to be guilty of per- 
 jury, and shall be liable to all the pains and penalties attached 
 thereto." 
 
 (As to perjury in affidavit, declaration or deposition, see 21 & 
 22 Vict. (1858) c. 108, s. 23, post.) 
 
 51. "The Court, on the hearing of any suit, proceeding or pe- 
 tition under this Act, and the House of Lords on the hearing of 
 any appeal under this Act, may make such order as to costs as to 
 such Court or House respectively may seem just: Provided always, 
 that there shall be no appeal on the subject of costs only." 
 
 52. "All decrees and orders to be made by the Court in any 
 suit, proceeding or petition to be instituted under authority of this 
 Act shall be enforced and put in execution in the same or the like 
 manner as the judgments, orders, and decrees of the High Court 
 of Chancery may be now enforced and put in execution." 
 
 53. "The Court shall make such rules and regulations con- 
 cerning the practice and procedure under this Act as it may from 
 time to time consider expedient, and shall have full power from 
 time to time to revoke or alter the same." 
 
 54. "The Court shall have full power to fix and regulate from 
 time to time the fees payable upon all proceedings before it, all 
 which fees shall be received, paid, and applied as herein directed : 
 Provided always, that the said Court may make such rules and reg- 
 ulations as it may deem necessary and expedient for enabling 
 persons to sue in the said Court in forma pauperis." 
 
 41
 
 55. "Either party dissatisfied with any decision of the Court 
 in any matter which, according to the provisions aforesaid, may be 
 made by the Judge Ordinary alone, may, within three calendar 
 months after the pronouncing thereof, appeal therefrom to the Full 
 Court, whose decision shall be final." 
 
 56. "(Which provided for an appeal in a case of dissolution 
 from the Full Court to the House of Lords was interpreted by 21 & 
 22 Vict. (1858) c. 108, s. 17, as referring also to sentences of 
 nullity. By 23 & 24 Vict. (1860) c. 144, s. 3, the right of appeal 
 was extended to decisions in such cases of the Judge Ordinary 
 alone. Finally sec. 56 and the other two sees. 17 and 3 referred to 
 were repealed by sec. 2, 31 & 32 Vict. (1868) c. 77, and by sec. 3 of 
 the same Act a right of appeal to the House of Lords in cases of 
 dissolution or nullity was reconferred subject to a proviso. See 
 post.) 
 
 57. "When the time hereby limited for appealing against any 
 decree dissolving a marriage shall have expired, and no appeal shall 
 have been presented against such decree, or when any such appeal 
 shall have been dismissed, or when in the result of any appeal any 
 marriage shall be declared to be dissolved, but not sooner, it shall 
 be lawful for the respective parties thereto to marry again, as if 
 the prior marriage had been dissolved by death : Provided always, 
 that no Clergyman in Holy Orders of the United Church of England 
 and Ireland shall be compelled to solemnize the marriage of any 
 person whose former marriage may have been dissolved on the 
 ground of his or her adultery, or shall be liable to any suit, penalty, 
 or censure for solemnizing or refusing to solemnize the marriage 
 of any such person." 
 
 (This section is to be read and construed with respect to the 
 time for appealing as varied by the 1868 Act. See 31 & 32 Vict. 
 (1868) c. 77, s. 4.) 
 
 58. "Provided always, that when any Minister of any Church 
 or Chapel of the United Church of England and Ireland shall refuse 
 to perform such marriage service between any persons who but for 
 such refusal would be entitled to have the same service performed 
 in such Church or Chapel, such Minister shall permit any other 
 Minister in Holy Orders of the said United Church, entitled to offi- 
 ciate within the Diocese in which such Church or Chapel is situate, 
 to perform such marriage service in such Church or Chapel." 
 
 59. "After this Act shall have come into operation no action 
 shall be maintainable in England for Criminal Conversation." 
 
 60. (Fees payable in stamps.) 
 
 61. (20 & 21 Vict. c. 77, concerning probate fees made ap- 
 plicable.) 
 
 42
 
 62. (Expenses to be paid out of moneys appropriated by Par- 
 liament.) 
 
 63. (Admission of and annual certificate of Proctors.) 
 
 64. (Compensation to Proctors.) 
 
 65. (Remuneration of Judge Ordinary, £5,000.) , 
 
 66. (Transfer of Ecclesiastical Court records.) 
 
 67. "All rules and regulations concerning practice or proce- 
 dure, or fixing or regulating fees, which may be made by the Court 
 under this Act, shall be laid before both Houses of Parliament 
 within one month after the making thereof, if Parliament be then 
 sitting, or if Parliament be not then sitting, within one month after 
 the commencement of the then next session of Parliament." 
 
 68. (Yearly account of fees laid before Parliament.) 
 
 21 & 22 Victoria, Chapter 108. 
 
 An Act to amend the Act of the Twentieth and Twenty-first 
 Victoria, chapter Eighty-five, 2nd August, 1858. 
 
 1. "It shall be lawful for the Judge Ordinary of the Court for 
 Divorce and Matrimonial Causes for the time being to sit in Cham- 
 bers for the despatch of such part of the business of the said Court 
 as can in the opinion of the said Judge Ordinary, with advantage 
 to the suitors, be heard in Chambers ; and such sittings shall from 
 time to time be appointed by the said Judge Ordinary." 
 
 2. (Commissioners of Treasury to provide Chambers.) 
 
 3. "The said Judge Ordinary when so sitting in Chambers 
 shall have and exercise the same power and Jurisdiction in respect 
 of the business to be brought before him as if sitting in open 
 Court." 
 
 4. "The Registrars of the Principal Registry of the Court of 
 Probate shall be invested with and shall and may exercise with 
 reference to proceedings in the Court for Divorce and Matrimonial 
 Causes the same power and authority which Surrogates of the 
 oflScial principal of the Court of Arches could or might before the 
 passing of the Twentieth and Twenty-first Victoria, chapter 
 seventy-seven, have exercised in Chambers with reference to pro- 
 ceedings in that Court." 
 
 5. (Evidence taken in Ecclesiastical Court admissible in case 
 of death, etc., of witness.) 
 
 6. "Every wife deserted by her husband wheresoever resident 
 in England, may, at any time after such desertion, apply to the 
 said Judge Ordinary for an order to protect any money or property 
 in England she may have acquired or may acquire by her own 
 
 43
 
 lawful industry, and any property she may have become possessed 
 of or may become possessed of after such desertion, against her 
 husband and his creditors, and any person claiming under him; 
 and the Judge Ordinary shall exercise in respect of every such 
 application all the powers conferred upon the Court of Divorce and 
 Matrimonial Causes under the Twentieth and Twenty-first Vic- 
 toria, chapter eighty-five, section twenty-one." 
 
 7. "The provisions contained in this Act and in the said Act 
 of the Twentieth and Twenty-first Victoria, chapter eighty-five, 
 respecting the property of a wife who has obtained a decree for 
 judicial separation or an order for protection, shall be deemed to 
 extend to property to which such wife has become or shall become 
 entitled as executrix, administratrix, or trustee since the sentence 
 of separation or the commencement of the desertion (as the case 
 may be) ; and the death of the Testator or Intestate shall be deemed 
 to be the time when such wife became entitled as executrix or 
 administratrix." 
 
 8. "In every case in which a wife shall under this Act or 
 under the said Act of the Twentieth and Twenty-first Victoria, 
 chapter eighty-five, have obtained an order to protect her earnings 
 or property, or a decree for judicial separation, such order or 
 decree shall, until reversed or discharged, so far as necessary for 
 the protection of any person or corporation who shall deal with the 
 wife, be deemed valid and effectual; and no discharge, variation, 
 or reversal of such order or decree shall prejudice or affect any 
 rights or remedies which any person would have had in case the 
 same had not been so reversed, varied, or discharged in respect of 
 any debts, contracts, or acts of the wife incurred, entered into, or 
 done between the times of making such order or decree and of the 
 discharge, variation, or reversal thereof; and property of or to 
 which the wife is possessed or entitled for an estate in remainder 
 or reversion at the date of the desertion or decree (as the case may 
 be) , shall be deemed to be included in the protection given by the 
 order or decree." 
 
 9. "Every order which shall be obtained by a wife under the 
 said Act of the Twentieth and Twenty-first Victoria, chapter 
 eighty-five, or under this Act, for the protection of her earnings 
 or property, shall state the time at which the desertion in conse- 
 quence whereof the order is made commenced ; and the order shall, 
 as regards all persons dealing with such wife in reliance thereon, 
 be conclusive as to the time when such desertion commenced." 
 
 10. "All persons and corporations who shall, in reliance on 
 any such order or decree as aforesaid, make any payment to, or 
 permit any transfer or act to be made or done by, the wife who has 
 obtained the same, shall, notwithstanding such order or decree may 
 then have been discharged, reversed, or varied, or the separation 
 
 44
 
 of the wife from her husband may have ceased, or at some time 
 since the making of the order or decree been discontinued, be pro- 
 tected and indemnified in the same way in all respects as if, at the 
 time of such payment, transfer, or other act, such order or decree 
 were valid and still subsisting without variation in full force and 
 effect, and the separation of the wife from her husband had not 
 ceased or been discontinued, unless at the time of such payment, 
 transfer or other act such persons or corporations had notice of 
 the discharge, reversal, or variation of such order or decree, or of 
 the cessation or discontinuance of such separation." 
 
 11. "In all cases now pending or hereafter to be commenced in 
 which, on the petition of a husband for a divorce, the alleged adult- 
 erer is made a co-respondent, or in which, on the petition of a 
 wife, the person with whom the husband is alleged to have com- 
 mitted adultery is made a respondent, it shall be lawful for the 
 Court, after the close of the evidence on the part of the petitioner, 
 to direct such co-respondent or respondent to be dismissed from 
 the suit, if it shall think there is not sufficient evidence against him 
 or her." 
 
 12. (By whom oaths administered.) 
 
 13. (Taxation of Proctors' and Solicitors' bills.) 
 
 14. (Enforcing payment of costs incurred in Ecclesiastical 
 Courts.) 
 
 15. (Judge Ordinary's authority and control over Proctors.) 
 
 16. (Commissioners for Isle of Man, etc.) 
 
 17. (Repealed, 31 & 32 Vict. (1868) c. 77, s. 2.) 
 
 18. "Where any trial shall have been had by a jury before the 
 Full Court or before the Judge Ordinary, or upon any issue directed 
 by the Full Court or by the Judge Ordinary, it shall be lawful for 
 the Judge Ordinary, subject to any rules to be hereafter made, to 
 grant a rule nisi for a new trial, but no such rule shall be made 
 absolute except by the Full Court." 
 
 19. (Repeals right of application to Judge of Assize.) 
 
 20. (Before whom affidavits to be sworn in foreign parts.) 
 
 21. (Before whom affidavits to be sworn in British Dominions 
 out of England.) 
 
 22. (Felony to forge seal.) 
 
 23. (Perjury to take false oath.) 
 
 45
 
 21 & 22 Victoria, Chapter 93. 
 
 An Act to enable persons to establish legitimacy and the valid- 
 ity of marriage and the right to be deemed natural-born subjects, 
 2nd August, 1858. 
 
 "Whereas it is expedient to enable persons to establish their 
 legitimacy, and the marriage of their parents and others from 
 whom they may be descended, and also to enable persons to estab- 
 lish their right to be deemed natural-born subjects : Be it therefore 
 enacted by the Queen's Most Excellent Majesty, by and with the 
 advice and consent of the Lords Spiritual and Temporal, and Com- 
 mons, in this present Parliament assembled, and by the authority 
 of the same, as follows:" 
 
 1. "Any natural-born subject of the Queen or any person 
 whose right to be deemed a natural-born subject depends wholly or 
 in part on his legitimacy or on the validity of a marriage, being 
 domiciled in England or Ireland, or claiming any real or personal 
 estate situate in England, may apply by petition to the Court for 
 Divorce and Matrimonial Causes, praying the Court for a decree 
 declaring that the petitioner is the legitimate child of his parents, 
 and that the marriage of his Father and Mother, or of his Grand- 
 father and Grandmother, was a valid marriage, or for a decree 
 declaring either of the matters aforesaid ; and any such subject or 
 person, being so domiciled or claiming as aforesaid, may in like 
 manner apply to such Court for a decree declaring that his mar- 
 riage was or is a valid marriage, and such Court shall have juris- 
 diction to hear and determine such application and to make such 
 decree declaratory of the legitimacy or illegitimacy of such person, 
 or of the validity or invalidity of such marriage, as to the Court 
 may seem just; and such decree, except as hereinafter mentioned, 
 shall be binding to all intents and purposes on Her Majesty and on 
 all persons whomsoever." 
 
 2. "Any person, being so domiciled or claiming as aforesaid, 
 may apply by petition to the said Court for a decree declaratory of 
 his right to be deemed a natural-born subject of Her Majesty, and 
 the said Court shall have jurisdiction to hear and determine such 
 application, and to make such decree thereon as to the Court may 
 seem just, and where such application as last aforesaid is made by 
 the person making such application as herein mentioned for a 
 decree declaring his legitimacy or the validity of a marriage, both 
 applications may be included in the same petition ; and every decree 
 made by the said Court shall, except as hereinafter mentioned, be 
 valid and binding to all intents and purposes upon Her Majesty 
 and all persons whomsoever. 
 
 46
 
 3. "Every petition under this Act shall be accompanied by 
 such affidavit verifying the same, and of the absence of collusion, 
 as the Court may by any general rule direct." 
 
 4. "All the provisions of the Act of the last Session, chapter 
 eighty-five, so far as the same may be applicable and the powers 
 and provisions therein contained in relation to the making and lay- 
 ing before Parliament of rules and regulations concerning the 
 practice and procedure under that Act, and fixing the fees payable 
 upon proceedings before the Court, shall extend to applications 
 and proceedings in the said Court under this Act, as if the same 
 had been authorized by the said Act of the last Session." 
 
 5. "In all proceedings under this Act the Court shall have full 
 power to award and enforce payment of costs to any persons cited 
 whether such persons shall or shall not oppose the declaration 
 applied for, in case the said Court shall deem it reasonable that 
 such costs should be paid." 
 
 6. "A copy of every petition under this Act, and of the affi- 
 davit accompanying the same, shall, one month at least previously 
 to the presentation or filing of such petition, be delivered to Her 
 Majesty's Attorney General, who shall be a respondent upon the 
 hearing of such petition and upon every subsequent proceeding 
 relating thereto." 
 
 7. "Where any application is made under this Act to the said 
 Court such person or persons (if any) besides the said Attorney 
 General as the Court shall think fit shall, subject to the rules made 
 under this Act, be cited to see proceedings or otherwise summoned 
 in such manner as the Court shall direct, and may be permitted to 
 become parties to the proceedings, and oppose the application." 
 
 8. "The decree of the said Court shall not in any case prejudice 
 any person, unless such person has been cited or made a party to 
 the proceedings or is the heir-at-law or next of kin, or other real 
 or personal representative of or derives title under or through a 
 person so cited or made a party ; nor shall such sentence or decree 
 of the Court prejudice any person if subsequently proved to have 
 been obtained by fraud or collusion." 
 
 9. (Persons domiciled in Scotland.) 
 
 10. "No proceeding to be had under this Act shall affect any 
 final judgment or decree already pronounced or made by any Court 
 of competent jurisdiction." 
 
 11. "The said Act of the last Session and this Act shall be 
 construed together as one Act; and this Act may be cited for all 
 purposes as 'The Legitimacy Declaration Act, 1858.' " 
 
 47
 
 22 & 23 Victoria, Chapter 61. 
 
 An Act to make further provision concerning the Court of 
 Divorce and Matrimonial Causes, 13th August, 1859. 
 
 1. (Judges of the Queen's Bench, Common Pleas and Ex- 
 chequer, made Judges of the Court.) 
 
 2. (Repealed by 23 & 24 Vict. (1860) c. 144, s. 4. New pro- 
 vision substituted, see post.) 
 
 3. (Precedence of Judge Ordinary.) 
 
 4. "The Court after a final decree of judicial separation, nul- 
 lity of marriage, or dissolution of marriage, may upon application 
 (by petition) for this pui-pose make, from time to time, all such 
 orders and provisions M^ith respect to the custody, maintenance, 
 and education of the children the marriage of whose parents was 
 the subject of the decree, or for placing such children under the 
 protection of the Court of Chancery, as might have been made by 
 such final decree or by Interim orders in case the proceedings for 
 obtaining such decree were still pending ; and all orders under this 
 enactment may be made by the Judge Ordinary alone or with one 
 or more of the other Judges of the Court." 
 
 (See sec. 35, principal Act.) 
 
 5. "The Court after a final decree of nullity of marriage, or 
 dissolution of marriage may enquire into the existence of ante- 
 nuptial or post-nuptial settlements made on the parties whose 
 marriage is the subject of the decree, and may make such orders 
 with reference to the application of the whole or a portion of the 
 property settled either for the benefit of the children of the mar- 
 riage or of their respective parents as to the Court shall seem fit." 
 
 6. "On any petition presented by a wife, praying that her 
 marriage may be dissolved by reason of her husband having been 
 guilty of adultery coupled with cruelty, or of adultery coupled with 
 desertion, the husband and wife respectively shall be competent 
 and compellable to give evidence of or relating to such cruelty or 
 desertion." 
 
 (See Evidence Act, 1869, 32 & 33 Vict. c. 68.) 
 
 7. Appeal to Lords under Legitimacy Declaration Act 1858, 
 c. 93.) 
 
 23 & 24 Victoria, Chapter 144. 
 
 An Act to amend the procedure and powers of the Court of 
 Divorce and Matrimonial Causes, 28th August, 1860. 
 
 1. "It shall be lawful for the Judge Ordinary of the Court for 
 Divorce and Matrimonial Causes alone to hear and determine all 
 
 48
 
 matters arising in the said Court, and to exercise all powers and 
 authority whatever which may now be heard and determined and 
 exercised respectively by the Full Court or by three or more Judges 
 of the said Court, the Judge Ordinary being one, or where the 
 Judge Ordinary shall deem it expedient, in relation to any matter 
 which he might hear and determine alone by virtue of this Act, to 
 have the assistance of one other Judge of the said Court, it shall 
 be lawful for the Judge Ordinary to sit and act with such one other 
 Judge accordingly, and in conjunction with such other Judge, to 
 exercise all the jurisdiction, powers, and authority of the said 
 Court." 
 
 2. "Provided always, that the Judge Ordinary may, where he 
 shall deem it expedient, direct that any such matter as aforesaid 
 shall be heard and determined by the Full Court; and in addition 
 to the cases in which an appeal to the Full Court now lies from 
 the decision of the Judge Ordinary, either party dissatisfied with 
 the decision of such Judge sitting alone in granting or refusing any 
 application for a new trial which by virtue of this Act he is em- 
 powered to hear and determine may, within fourteen days after 
 the pronouncing thereof, appeal to the Full Court, whose decision 
 shall be final." 
 
 3. (Repealed 31 & 32 Vict. (1868) c. 77. s. 2.) 
 
 4. (Regulates sittings of Full Court.) 
 
 5. (Court may in case of petition for dissolution direct papers 
 to be sent to Queen's Proctor.) 
 
 6. "And whereas by section forty-five of the Act of the Session 
 "holden in the Twentieth and Twenty-first years of Her Majesty, 
 "chapter eighty-five, it was enacted, that 'In any case in which the 
 " 'Court shall pronounce a sentence of divorce or judicial separation 
 " 'for adultery of the wife, if it should be made appear to the Court 
 " 'that the wife was entitled to any property, either in possession 
 " 'or reversion, it should be lawful for the Court, if it should think 
 " 'proper, to order such settlement as it should think reasonable to 
 " 'be made of such property, or any part thereof, for the benefit of 
 " 'the innocent party and of the children of the marriage, or either 
 " 'of them:' Be it further enacted, that any instrument executed 
 "pursuant to any order of the Court made under the said enactment 
 "before or after the passing of this Act, at the time of or after the 
 "pronouncing of a final decree of divorce or judicial separation, 
 "shall be deemed valid and effectual in the law, notwithstanding the 
 "existence of the disability of coverture at the time of the execution 
 "thereof." 
 
 7. "Every decree for a divorce shall in the first instance be a 
 decree nisi, not to be made absolute till after the expiration of such 
 time, not less than three months from the pronouncing thereof, as 
 the Court shall by general or special order from time to time direct ; 
 
 49
 
 and during that period any person shall be at liberty, in such man- 
 ner as the Court shall by general or special order in that behalf 
 from time to time direct, to show cause why the said decree should 
 not be made absolute or by reason of the same having been obtained 
 by collusion or by reason of material facts not brought -before the 
 Court ; and, on cause being so shown, the Court shall deal with the 
 case by making the decree absolute, or by reversing the decree nisi, 
 or by requiring further inquiry, or otherwise as justice may re- 
 quire ; and at any time during the progress of the cause or before 
 the decree is made absolute any person may give information to 
 Her Majesty's Proctor of any matter material to the due decision 
 of the case, who may thereupon take such steps as the Attorney 
 General may deem necessary or expedient; and if from any such 
 information or otherwise the said Proctor shall suspect that any 
 parties to the suit are or have been acting in collusion for the pur- 
 pose of obtaining a divorce contrary to the justice of the case, he 
 may, under the direction of the Attorney General, and by leave of 
 the Court, intervene in the suit alleging such case of collusion, and 
 retain counsel and subpoena witnesses to prove it; and it shall be 
 lawful for the Court to order the costs of such counsel and wit- 
 nesses, and otherwise, arising from such intervention, to be paid 
 by the parties or such of them as it shall see fit, including a wife 
 if she have separate property, and in case the said Proctor shall 
 not thereby be fully satisfied his reasonable costs, he shall be 
 entitled to charge and be reimbursed the difference as part of 
 the expense of his office." 
 
 8. "This Act shall continue in force until the Thirty-first day 
 of July One thousand eight hundred and sixty-two, and no longer." 
 
 (Repealed and Act made perpetual by 25 & 26 Vict. (1862) 
 c. 81, s.l.) 
 
 27 & 28 Victoria, Chapter 44. 
 
 An Act to amend the Act relating to Divorce and Matrimonial 
 Causes in England, Twentieth and Twenty-first Victoria, chapter 
 eighty-five, 14th July, 1864. 
 
 1. "Where under the provisions of sec. 21 of the said Act a 
 wife deserted by her husband shall have obtained or shall hereafter 
 obtain an order protecting her earnings and property, from a Police 
 Magistrate or Justices in Petty Sessions, or the Court of Divorce 
 and Matrimonial Causes, as the case may be, the husband and any 
 creditor or other person claiming under him may apply to the 
 Court or to the Magistrate or Justices by whom such order was 
 made for the discharge thereof as by the said Act authorized ; and 
 in case the said order shall have been made by a Police Magistrate 
 and the said Magistrate shall have died or been removed or have 
 
 50
 
 become incapable of acting, then in every such case the husband, 
 or creditor, or such other persons as aforesaid, may apply to the 
 Magistrate for the time being acting as the successor or in the 
 place of the Magistrate who made the order of protection for the 
 discharge of it, who shall have authority to make an order discharg- 
 ing the same ; and an order for discharge of an order for protection 
 may be applied for to and be granted by the Court although the 
 order for protection was not made by the Court and an order for 
 protection made at one Petty Sessions may be discharged by the 
 Justices of any later Petty Sessions or by the Court." 
 
 29 & 30 Victoria, Chapter 32. 
 
 An Act to further amend the procedure and powers of the 
 Court for Divorce and Matrimonial Causes, 11th June, 1866. 
 
 Whereas by the Act passed in the session of Parliament holden 
 the Twentieth and Twenty-first years of the Reign of Her Present 
 Majesty entitled "An Act to amend the laws relating to Divorce and 
 Matrimonial Causes in England," it is by the Thirty-second section 
 enacted, "that the Court may on pronouncing any decree for the 
 dissolution of marriage order that the husband shall to the satis- 
 faction of the Court secure to the wife such gross or annual sum 
 of money as to the Court may seem reasonable and for that purpose 
 may refer it to one of the conveyancing counsel of the Court of 
 Chancery to settle and approve of a proper deed to be executed by 
 all necessary parties." 
 
 "And whereas it sometimes happens that a decree of dissolu- 
 tion of marriage is obtained against a husband who has no property 
 on which the payment of any such gross or annual sum can be 
 secured but nevertheless he would be able to make a monthly or 
 weekly payment to the wife during their joint lives." 
 
 1. "In every such case it shall be lawful for the Court to make 
 an order on the husband for payment to the wife during their joint 
 lives of such monthly or weekly sums for her maintenance and sup- 
 port as the Court may think reasonable : Provided always, that if 
 the husband shall afterwards from any cause become unable to 
 make such payments it shall be lawful for the Court to discharge or 
 modify the order or temporarily to suspend the same as to the 
 whole or any part of the money so ordered to be paid and again to 
 revive the same order wholly or in part as to the Court may seem 
 fit." 
 
 2. "In any suit instituted for dissolution of marriage if the 
 respondent shall oppose the relief sought on the ground in case 
 of such a suit instituted by a husband of his adultery, cruelty, or 
 
 51
 
 desertion, or in case of such a suit instituted by a wife on the 
 ground of her adultery or cruelty, the Court may in such suit give 
 to the respondent on his or her application the same relief to which 
 he or she would have been entitled in case he or she had filed a 
 petition seeking such relief." 
 
 3. "No decree nisi for a divorce shall be made absolute until 
 after the expiration of six calendar months from the pronouncing 
 thereof unless the Court shall under the power now vested in it fix 
 a shorter time." 
 
 31 & 32 Victoria, Chapter 77. 
 
 An Act to amend the law relating to appeals from the Court 
 of Divorce and Matrimonial Causes in England, 31st July, 1868. . 
 
 "Whereas it is expedient to amend the law relating to appeals 
 from the Court of Divorce and Matrimonial Causes with a view to 
 prevent unnecessary delay in the final determination of suits for 
 dissolution or nullity of marriage." 
 
 "Be it therefore enacted, &c." 
 
 1. "Throughout this Act the expression 'the Court' shall mean 
 the Court of Divorce and Matrimonial Causes." 
 
 2. "Section fifty-six of the Act of Twentieth and Twenty-first 
 Victoria, chapter eighty-five, section seventeen of the Act of 
 Twenty-first and Twenty-second Victoria, chapter one hundred and 
 eight, and section three of the Act of Twenty-third and Twenty- 
 fourth Victoria, chapter one hundred and forty-four are hereby 
 repealed." 
 
 3. "Either party dissatisfied with the final decision of the 
 Court on any petition for dissolution or nullity of marriage may 
 within one calendar month after the pronouncing thereof appeal 
 therefrom to the House of Lords and on the hearing of any such 
 appeal the House of Lords may either dismiss the appeal or reverse 
 the decree or remit the case to be dealt with in all respects as the 
 House of Lords shall direct : Provided always, that in suits for dis- 
 solution of marriage no respondent or co-respondent not appearing 
 and defending the suit on the occasion of the decree nisi being 
 made shall have any right of appeal to the House of Lords against 
 the decree when made absolute unless the Court upon application 
 made at the time of the pronouncing of the decree absolute shall 
 see fit to permit an appeal." 
 
 4. "Section 57 of the Act of 21 Victoria, c. 85, shall be read 
 and construed with reference to the time for appealing as varied by 
 this Act ; and in cases where under this Act there shall be no right 
 of appeal the parties respectively shall be at liberty to marry again 
 at any time after the pronouncing of the decree absolute." 
 
 52
 
 5. "This Act may be cited as The Divorce Amendment Act, 
 1868." 
 
 6. "This Act shall extend to all suits pending at the time when 
 the same shall come into operation notwithstanding that a decree 
 may have been pronounced therein ; provided nevertheless that this 
 Act shall not affect any pending appeal nor shall the same prejudice 
 any subsisting right of appeal against a decree already pronounced 
 provided such appeal be lodged within one calendar month after 
 this Act shall come into operation." 
 
 53
 
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