. . - - . I , >.? '• MH :■: y SO K ' S' mmMm^mm'% m ;> >-,>>> i'? : ’ > ; ; >'>>--» ; - v t '##•>!•: $*! ? > ; |»f \ $$$$> ; >'A>?% ;>;'’.»• W» Atys&ystf’X :••■ - LIBRARY OF THE UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN kD 1 9 13 BROWNE AND WATTS’ ffufu m\h ITmdicc IN Divorce & Matrimonial Causes. EIGHTH EDITION. BY J. H. WATTS, OF THE INNER TEMPLE AND THE SOUTH-EASTERN CIRCUIT, BARRISTER - AT - LAW . LONDON : SWEET & MAXWELL, Ltd., 3, CHANCERY LANE. STEVENS & SONS, Ltd., 119 & 120, CHANCERY LANE. 1913. / Digitized by the Internet Archive in 2016 with funding from University of Illinois Urbana-Champaign Alternates https://archive.org/details/brownewattslawprOOwatt ( iii ) K"D 19/3 PREFACE TO THE EIGHTH EDITION. — ♦ — The present Edition of this book has been re-written in parts, and all the new cases of any importance have been incorporated. As in the previous Edition, the Work has been divided into two parts, Part I. being devoted to Law and Part II. to Practice. In previous Editions the List of Cases did not include the names of co-respondents ; these have now been added, so that the reader can at once see whether the suit was a petition by the husband or the wife. My thanks are due to Mr. H. B. Durley Grazebrook, Junr., who has given me the greatest help, and has also gone through the Cases for me. a 2 QOAo IV PREFACE TO THE EIGHTH EDITION. My thanks are also due to the learned Authors of Macqueen’s “ Law of Husband and Wife,” Lush’s “Law of Husband and Wife,” and “ The Comparative Law of Marriage and Divorce.” JOHN H. WATTS. 5, Pump Court, Temple. November, 1912. ( V ) TABLE OF CONTENTS. Preface to Eighth Edition Table of Cases List of Statutes Part I. PRINCIPLES OF THE LAW OF DIVORCE AND MATRIMONIAL CAUSES Jurisdiction CHAPTER I. CHAPTER II. Dissolution of Marriage . CHAPTER III. Judicial Separation CHAPTER IV. Restitution of Conjugal Rights . CHAPTER V. Jactitation of Marriage . CHAPTER VI. Nullity of Marriage CHAPTER VII. PAGE iii ix xxix 1—276 1—23 24—60 61—82 83—92 93, 94 95—132 Damages . 133—138 VI TABLE OF CONTENTS. CHAPTER VIII. Custody of and Access to Children . .139- CHAPTER IX. Alimony and Maintenance . . .148 CHAPTER X. Protection Orders . . . .169- CHAPTER XI. Variation of Settlements . . .175- CHAPTER XII. Decree and Intervention. . . .192- CHAPTER XIII. Legitimacy Declaration Act, 1858 . . 204- CHAPTER XIV. Summary Jurisdiction (Married Women) Act, 1895 ...... 212- CHAPTER XV. New Trial and Re-Hearing . . . 223- CHAPTER XVI. Costs ...... 228- CHAPTER XVII. Evidence . . . . .251 PAGE -147 -168 -174 -191 -203 -211 -222 -227 -250 -276 A Table of Kindred and Affinity . 277—279 TABLE OF CONTENTS, Vll Part II, PRACTICE OF THE PROBATE, DIVORCE & ADMIRALTY DIVISION IN MATRIMONIAL SUITS . 282- (1) GENERAL OBSERVATIONS . . 282- PRACTICE IN SUITS FOR— (2) Dissolution .... 285- (3) Judicial Separation. . . 405- (4) Restitution of Conjugal Rights . 414- (5) Jactitation of Marriage . . 420- (6) Nullity of Marriage . . 425- (7) Damages .... 442, (8) Custody of and Access to Children 444, (9) Alimony and Maintenance . . 446- (10) Protection Orders . . .476 (11) Variation of Settlements . .480- (12) Decree and Intervention . . 487- (13) Legitimacy Declaration Act, 1858 . 498- (14) Summary Jurisdiction (Married Women) Act, 1895 (15) Motions and Summonses . . 511- (16) New Trial and Re- Hearing (17) Appeal .... 525 (18) Costs .... 540- (19) Evidence .... 604- (20) Enforcing Decrees and Orders . 638 PAGE -656 -284 -404 -413 -419 -424 -441 443 445 -475 -479 -486 -497 -510 511 -524 525 -539 -603 -637 -656 Vlll TABLE OF CONTENTS. APPENDIX A. PAGE Rules ...... 657 — 691 APPENDIX B. Matrimonial Causes Acts . . 692 — 716 APPENDIX C. Statutes Miscellaneous . 717—766 GENERAL INDEX 771 I 1X ) TABLE OF CASES. — <► — A. TAGE A. v. A 129 A. (otherwise B.) v. A. (Q. P. intervening') 202 A. v. B. (and another) 96, 129, 130 A. (otherwise M.) v. M 177 A.’s Divorce Bill 164, 166 Abbott v. Abbott and Godoy. 265 Adams v. Adams and Goiter. 241 v. and Guest. 258 Afford v. Afford 245 Ahier v. Ahier 530 Aikman v. Aikman and Aik- man 12 Aires v. Aires 235 Aldridge, Ex parte 173 v. Aldridge (other- wise Morton) 132 Aleson (Mulier) v. Aleson (Virum) 130 Alexandre v. xUexandre (Q. P. intervening) 198 Alison, In re 97, 116 Allardice v. Onslow 13 Allcard v. Walker 190 Allcock v . Hall 531 Allen v. Allen and D’Arcy. 34, 565 v. 47,57 141 v. — 237, 419 v. and Bell 269 Ambler v. Ambler and Hoghton 297 Andrews (otherwise Ross) v. Ross 125 Angle v. Angle 36, 37 Angliss v. Angliss 236 Anichini v. Anichini ...35,49, 79 Anon 131, 134 Anthony v. Anthony 145 Appleyard v. Appleyard and Smith 309 PAGE Aptliorpe v. Aptliorpc 648 Argar v. Iloldsworth 105 Arkley v. Arkley 79 Arkwright v. Arkwright.. 177, 249 Armitage v. Armitage and Macdonald .. 257 v. Att.-Gen. (Gil- lig cited) 123, 211 Armytage v. iVrmytage ...4, 21, 61, 139 Arnold v. Earle 129 Ash v. Ash 235 Ashcroft v. Ashcroft and Roberts 164 Astley v. Astley 79 Astrope v. Astrope 70, 75 Att.-Gen. v. Blucher de Wahlstadt .. 12 v. Fitzgerald 13 v. Kent and others 13 v. Parnther 128 — — v. Pottinger 13 v. Rowe 12 v. Winans 15 Attwood (otherwise Pomeroy) v. Attwood 177, 249 Aubourg v. Aubourg 65 Avila v. Avila 155, 160 Ayres v. Ayres 647 B. B. v. B 142 B. (otherwise H.) v. B 130, 177, 257 B n v. M e 129 Babbage v. Babbage and Manning 255, 269 Bacon v. Bacon and Ashby (Q. P. intervening) 45 Bacon v. Bacon and Bacon... 191 Badcock v. Badcock and Chamberlain 58, 239 X TABLE OF CASES, PAGE Badham v. Badliam and Gorst 69 Bagot v. Bagot 272, 287 Bailey v. Bailey 158 Baily v. Baily and Della Rocca 553, 564 Bain v. Att.-Gen. (Usher intervening).. 250, 565 v. Bain 150 Baker v. Baker 26 v. and Dwyer.. 244, 286 v. and Grigg... 242 Balcombe v. Balcombe 43 Bale, Ex 'parte 136 Balfour v. Carpenter 106 Bancroft v. Bancroft and Rumney 242 Barber v. Barber 286 Barford, Ex parte 145 Barker v. Barker 33 i’. 217,221 Barlee v. Barlee 83 Barnes v. Barnes and Beau- mont 50, 142, 226 v. Barnes and Grim- wade (Q. P. intervening).. 45, 58, 245, 497 Barrett v. Barrett 67 Barry v. Barry 167 Bartlett (otherwise Rice) v. Rice 126 Bashall v. Bashall 190 Basing v. Basing 30, 73 Bateman v. Bateman 419 v. (other- wise Harrison) 121, 154 Bater v. Bater (otherwise Lowe) 17, 123 Bates v. Bates and others... 262 v. 646 Bathe v. Bank of England ... 171 Battey v. Battey 258 Bawden v. Bawden 22 Baylis v. Baylis, Teevan and Cooper 58 Beauchamp, In re or Ex parte 325 v. Beauchamp and Watt 187 Beauclerk v. Beauclerk 56, 65, 91 Beaumont, In re 10 Beavan v. Beavan 154, 564 Bevan v. McMahon and Bevan 104, 107 Beeby v. Beeby 37, 38, 79, 80 Beecham v. Beecham 325 PAGE Beer v. Beer... 71, 89, 91, 231, 235 Beeswing, The 535 Begg v. Begg 248, 526 Bell v. Bell (Q. P. inter- vening)... 35, 47, 59, 202 — v. Graham 121 — v. Kennedy and others. 11 Bempde v. Johnstone (Gra- ham v. Johnstone) 13 Bent v. Bent and Footman.. 136, 142, 164, 183 Benyon v. Benyon and O’Cal- laghan 166, 178, 184 Benyon v. Benyon and O’Cal- laghan 177 Bernstein v. Bernstein, Sampson and Turner 43, 138, 240 Berry v. Berry and Carpen- ter 256 Best v. Best 63, 270 Bethell, In re, Bethell v. Hildyard 96 Bethune v. Bethune 65 Biddulph v. Lord Camoys ... 265 Bigwood v. Bigwood 74, 87 Bikker v. Bikker and White- wood 134 Bilby v. Bilby and ILarrop.. 243 Billingay v. Billingay and Thomas 135 Binney v. Binney 41, 56 Binstead, In re 244 Birch v. Birch 64, 67, 648 Bird (otherwise Bell) v. Bird 151, 152 Birt v. Barlow 262 — v. Boutinez (falsely called Birt) 122 Bishop v. Bishop. ..147, 166, 167 v. 363 Blackborne v. Blackborne. . . 89 Blackett v. Blackett 190 v. and Frail 137, 249 Blackball v. Blackhall and Clarke (Q. P. intervening) 246 Blackmore v. Mills (falsely called Blackmore) 154 Bland v. Bland 29, 78 v. 309 Blandford v. Blandford ...40, 41 v. ..145, 167 Blood v. Blood 177 Boardman v. Boardman (Q. P. intervening) 253 Bodd) r v. Boddy and Grover. 146, 257, 294, 363 TABLE OF CASES, XI PAGE Bodkin v. Case 94 Boger v. Boger 287 Bonaparte v. Bonaparte ... 28, 297, 346 Bonaparte v. Bonaparte (otherwise Megone)..14, 45, 124 Bond v. Bond 2, 15 Bonsor v. Bonsor 155, 167 Bosworthick v. Boswortliick.. PAGE Brougham v. Brougham (Q. P. intervening) ...56, 202 Brown v. Brown 25 v. and Robey. 34, 58, 237, 243 v. 67 v. - and Paget (Q. P. intervening) 255 Brown v. Brown and Shelton 29, 66 Bostock v. Bostock 41, 68 Bosvile v. Att.-Gen. (Bosvile and others cited) 209 Bosvile v. Bosvile and Craven 179 Boucher v. Boucher and Judd 50 Boulting v. Boulting 34, 55 Boulton v. Boulton and Page 196, 200 Bourgeoise, In re 9 Bouverie, In re 510 Bowen v. Bowen and Evans (Q. P. intervening)... 196, 246 Bowzer v. Ricketts 104 Boyd v. Boyd and Collins... 142, 239 Boyndon v. Boyndon 144 Boynton v. Boynton 144, 187, 230 Bozzelli, In re 125 Bradley v. Bradley 159, 469 v. 163 Bradshaw v. Bradshaw ...77, 220 Bramwell v. Bramwell 39 Brandon v. Hughes 174 Brealy (falsely called Reed) v. Reed 110 Bremner v. Bremner 236 v. and Brett 240, 241 Bridgman v. Bridgman and Puckrin 564 Briggs v. Briggs. ..11, 18, 19, 122 v. Morgan 95, 130 Brinkley v. Att.-Gen 96, 100, 211 Brisco v. Brisco ...150, 151, 152 Broad v. Broad 212 Brocas v. Brocas 389 Brodie v. Brodie 15, 17 Brodribb v. Brodribb and Wall 647 Bromfield v. Bromfield 294 Bromley v. Bromley 78 Brook and others v. Brook and others and Att.-Gen.. 97, 102, 125, 263 Brooks v. Brooks’ Trustees.. 15 80, 255 v. ...104, 129, 151 v. — — and Simp- son 154 v. 220, 537 and another v. Brown. 611 v. Smith 11, 12 Browning v. Browning 63, 67, 270 v. Reane 126 Bruce, Ex parte 298 v. Burke 122 Buckmaster v. Buckmaster. . . 72 Bullock v. Bullock 53 v. and Strong 182 Bullus v. Bullus 235 Burdon v. Burdon (Q. P. showing cause) 52 Burn v. Farrar (falsely called Farrar) 116 Burnaby v. Baillie 209, 255 Burroughs v. Burroughs, Burroughs v. Burroughs and Silcock 232, 233 Burslem v. Burslem 258 Burt v. Burt 28 Butchart v. Butchart and Hill ....227, 526 Butler v. Butler and Burn- ham (Q. P. intervening)... 45, 198, 247 Butler v. Butler and Burn- ham 45, 69, 153, 198, 247, 248, 462 Butler v. Butler 151 V. • (Q. P. in- tervening).. 196 V. — 235 V. — 247 V. — — 647 V. Holben 93 0 . Caldecott v. Caldecott 232 Cale v. James 238 Xll TABLE OF CASES PAGE Callwell v. Call well and Kennedy 135, 191 Campbell v. Campbell 37, 264 v. Corley 93 Capstick v. Capstick, Furness and Winder 154 Carew v. Carew (Q. P. show- ing* cause).. 202 v. 455 Cargill v. Cargill.. 30, 40, 73, 173 Carson v. Pickersgill and Sons 245 Carstairs v. Carstairs, Dick- enson and others 232, 250 Carter v. Carter 160, 166 v. (K. P. showing cause) 246 Cartlidge v. Cartlidge ...141, 224 Cartwright v. Cartwright... 128 Cass v. Cass (otherwise Pfaff) 123 Castleden v. Castleden 131 Castrique v. Behrens 17 Catherwood v. Caston 115 Catterall v. Sweetman 95, 102 Cavendish v. Cavendish 486 Chalmers v. Chalmers ...178, 179 Chambers v. Chambers 79 v. 86 v. — - 274 Chandler v. Chandler 309 Chaplin, In re 510 Chapman v. Chapman and Buist 244 Charter v. Charter 220 v. 335 Chesnutt v. Chesnutt 62, 63 Chettle v. Chettle 79 Clietti (Venugopal) v. Chetti Venugopal) 4, 21, 104 Chetwynd v. Chetwynd 143, 144, 180, 232 Chichester v. Donegal. ..9, 10, 104 v. Mure (falsely called Chichester) 122 Chilcott v. Chilcott and Smith 307 Childers v. Childers (other- wise Burford) 154 Christian v. Christian 23 Churchill v. Churchill and Abbott 306 Churchward v. Churchward.. 177 and Holliday (Q. P. inter- vening). . .46, 177, 194, 198, 200 Ciocci v. Ciocci 63, 80, 269 Clark v. Clark 90 PAGE Clark v. Clark and Bouck ... 135 v. , Perrin and Cumins . . . 233 v. — — and Saldji — 233 Clarke v. Clarke and Clarke.. 51 v. 647 v. and Lind- say 484 (otherwise Stier) v. Stier 126 Clayton’s Case 36 Cleaver v. Cleaver 528 Clements v. Clements and Thomas (Eames and Bur- roughs intervening)... 196, 198 Clifford v. Clifford 164, 179 Clinton v . Clinton 155, 648 Cloborn’s Case 63 Cloncurry’s (Lord) Case 37 Clowes v. Jones (falsely call- ing herself Clowes) 107, 114 Cobb v. Cobb 217, 221, 276 Cock v. Cock 76 Cocksedge v. Cocksedge 79 Codrington v. Codrington and Anderson 143, 223, 240 Coffey v. Coffey 29 Cohen v . Cohen 122 Coleman v . Coleman 49 Collett v. Collett 39, 270 Collins v. Collins 29, 41, 50 v. 163 v. and Smith 245 Colonial Securities Trust v. Massey 530 Corny n v. Corny n and Hum- phreys 134 Conelly v. Conelly 263 Connemara v. Connemara... 384 Conradi v. Conradi and Flashman ... 241 v. Conradi, Wor- rall and Way (Q. P. inter- vening) 51, 80, 253, 275 Constable v. Constable 454 Constantinidi v. Constantinidi and Lance 48, 52, 53, 483 Constantinidi v. Constantinidi and Lunn 180 Conway v. Beasley 123 Cooke v. Cooke 41, 42, 81 v% 144 v. 152 v. and Allen... 232 v. and Quaile. .. 307 v. and Lucy... 309, 338 565 v. TABLE OF CASES. Xlll PAGE Cooke v. Fuller 174 Coombs v. Coombs 53 v. 154 Cooper v. Cooper 72, 231 (otherwise Crane) v. Crane 126 Cooper King v. Cooper King 268 Cope’s Case 44 Cope v. Burt (falsely calling herself Cope) 107 Copsey v. Copsey and Erney. 41 Corbett v. Corbett 162 Cornish v. Cornish 272 Corrance v. Corrance and Lowe (Moore intervening) _ 483, 485 Cotton v. Cotton and Kinnis. 306 Coulthart v. Coulthart and Go uth waite 71 Cousen v. Cousen 64 Coward, In re 174 Cowing v. Cowing and Wollen 134 Cowley v. Cowley 275 Cox v. Cox 46, 246 — v. — 363 — v. — 151 — — 310 — v. — and Wardle. ..137, 138 Crabb v. Crabb 75, 76 Craig v. Craig and Hamp 648 Craigie and Craigie v. Lewin and others 13 Craignish, In re, Craignish v. Hewitt 10 Crampton v. Cramp ton and Armstrong ...155, 156, 450, 460 Crawford v. Crawford and Dilke (Q. P. intervening).. 197, 198, 496 Creagli v. Creagh 191 Crewe v. Crewe 37 Cridland v. Cridland 307 Crisp v. Crisp 179 Crookenden v. Fuller 12 Cross, Ex parte, Duleep Singh, In re 11 Cudlipp v. Cudlipp 72 Culling v. Culling and Nicholson 116 Cunningham v. Cunningham 237 Cunnington v. Cunnington and Noble 58 Cuno v. Cuno 96 Curtis v. Curtis 40, 41, 64, 68, 139 D. PAGE D. v. A. (falsely calling her- self D.) 129, 131 D. v. D., D. v. de G 637 D. v. M 196 Dagg v. Dagg and Speake ... 76 D 'Aguilar v. DA.guilar 36, 38, 62, 63 Dale, Ex parte 244 v. Dale and Macdonell.. 135 Dalhousie v. McDouall. ..9, 10, 13 D ’Alton v. D’ Alton 141, 143 Dallas v. Dallas 71 Daly, In re 10 Darbishire v. Darbishire and Baird 134, 138 D’Arcy v. D’Arcy 90 Davidson v. Davidson 269 Davies v. Davies 167 v. and Hughes 58 v. — — and M’Carthy 179 Davis v. Davis 143 Davison v. Davison 246 v. Farmer and Grace 2 Day v. Day 186 De B. v. De B 230 De Capdevielle, In re 13 D’Etchgoyen v. D’Etch- goyen 20 De Laubenque v. De Lau- benque 77 De Lossy v. De Lossy... 162, 646 De Niceville v. De Nice- ville 306 D’Oy ley’s Case 271 D’Oyley v. D’Oyley and Baldie 460 De Kicci v. De Ricci 524 De Wilton, In re, De Wilton v. Montefiore 99, 112 Deck v. Deck 15 Denniss v. Denniss 83 Dent v. Dent 40,41,294 Dering v. Dering and Blake- ley (Q. P. and others in- tervening)... 57, 194, 195, 254, 389, 496 Dickens v. Dickens 158 Dickinson v. Dickinson 72 Dicks v. Dicks 419 Diddear (falsely called Faw- cit otherwise Savill) v. Faucit 108 Dillon v. Dillon 37, 79 Ditchfield v. Ditchfield 229 Dixon v. Dixon... 28, 60, 75, 80 v. 229 XIV TABLE OF CASES, PAGE Dobbin v. Cor neck 110 Dodd v. Dodd 218 Dodds v. Att.-Gen 210 Dolphin v. Robins and Pax- ton 10, 15, 122 Dormer (otherwise Ward) v. Ward 176 (falsely called Wil- liams) v. Williams 114 Doucet v. Geoghegan 13 Douglas v. Douglas and Trevor 184 Dowling v. Dowling 43 Downe’s Case 44 Drevon v. Drevon 12 Drew v. Drew 70 v. 75 v. 83 Driffield v. Driffield 485 Drinkwater v. Drinkwater. . . 286 Druce v. Druce 384 Drummond v. Drummond (Viscountess Forth v. Vis- count Forth, Q. P. inter- vening) 68, 200 Duggan v. Duggan 146 Duins v. Donovan 95 Duleep Singh, In re 11 Dunbar (otherwise White) v. Dunbar 164 Dunn v. Dunn 152, 462 Duplany v. Duplany (Cohen intervening) 69, 75, 80 Durant v. Durant ...38, 39, 41, 62, 152, 269 Durham v. Durham 127 Du Terreaux v. Du Ter- reaux 71 Dysart v . Dysart 62, 63, 84 v. 62 E. E. v. E. (otherwise T.)... 177, 257 Earnshaw v. Earnshaw..217, 238 Eaton v. Eaton and Camp- bell 156 Edward’s (Captain) Case ... 44 Edwards v. Edwards 72 v. 155 v. - and Francis.. 164 v. and Wilson... 285 Eldred v. Eldred 39 Eliot v. Eliot 270 PAGE Ellam v. Ellam. . .28, 258, 346, 605 Ellaytt v. Ellaytt, Taylor and Halse 225 Ellenborough’s (Lord) Case. 271 Elliott v. Elliott 87, 414 , In the Goods of 173 Ellis v. Ellis and Smith 40 v. 157 v. 220 Elwes v. Elwes 36 Enticknap v. Pice (falsely called Enticknap) 261 Euston v. Smith (falsely called Euston) 258 Evans v. Evans 39 v. 62 v. and Bird 136 v. and Blyth.. 184, 209, 255 v. and Elford. 51 v. and Platts.. 135 v. and Robin- son 564 Evered v. Evered and Graham 178 Ewart v. Chubb 173 Ewens v. Tytherleigh 131 Ewing (falsely called Wheat- ley) v. Wheatley 107 F. F. (falsely called D.) v. D... 130 F. v. P. (falsely called F.).. 130 Failes v. Failes . 218 Fairfax v. Fairfax and de la Crux 244 Faremouth and others v. Watson 104 Farmer v. Farmer 72, 75 Farraday, In the Goods of ... 169 Farrell v . Farrell 203, 355 Farrington v. Farrington and Schooles 183, 485 Faulkes v. Faulkes and Stainton 56 Faussett v. Faussett 269 Fawcus, In the Goods of 608 Fearon v. Aylesford 163 Fellowes (falsely called Stewart) v. Stewart 110 Fendall (otherwise Goldsmid) v. Goldsmid 109 Fenton v. Livingstone 97, 102, 208 Ferrers v. Ferrers 38, 79 TABLE OF CASES XV PAGE Field v. Field 87, 414 v. and Denton... 234 Finlay v. Finlay and Rudall. 151, 239, 266 Finney v. Finney 80, 565 Firebrace v. Firebrace 17 Fisher v. Fisher 161 Fisk v. Fisk 167 Fitzgerald v. Fitzgerald 70 192 v. 224, 613, 617 v. 291 Fletcher v. Fletcher 154 Flower v. Flower and others. 202 v. : 230 Flnister v. Fluister and Hutton 376 Foden v. Foden 153, 462 Forbes-Smith v. Forbes- Smith and Chadwick 244 Ford v. Ford 257 Forster v. Forster 79 v. 264 v. 306 v. and Ber- ridge..22, 135 v. and Ber- ridge (Graham intervening) 99, 246, 493 Forster v. Forster and Thomas 157 Forsyth v. Forsyth 178 v. , Eccles and Foster 69 Forth v. Forth 68, 164 Frankfort v. Frankfort 152 Franks v. Franks 167 Frebout v. Frebout 565 Frederick v. Att.-Gen. and Frederick cited to see pro- ceedings 209, 210 Freegard v. Freegard, Cow- per and Lucas 48 Freeman v. Freeman and Freeman 198 French-Brewster v. French- Brewster ; French-Brew- ster v. French-Brewster and Gore 74 Frith v. Frith and Paice. .. 26G Frowd v. Frowd 221 Fry v. Fry 26, 324, 432 Fryer, In re 443 Furlonger v. Furlonger 63 Furness v. Furness 28 G. PAGE G. v. G 130 G. v. M 130, 132 G s (falsely called T e) v. T e 130 Gale v. Gale 62 Gandy v. Gandy 167, 178 Garcia v. Garcia 72, 75 Gardner v. Att.-Gen 211 Garstin v. Garstin 21, 396 Gatehouse v. Gatehouse ...72,75 Gay nor v. Gay nor and Degliantoni 154 Geils v. Geils 62, 123 George’s Case 44 George v. George 162 v. Thyer..95, 96, 211,262 Gethin v. Gethin (Q. P. in- tervening) 45, 223 Getty v. Getty 271 Gibson v. Gibson 30 v. and West. 134 Giles v. Giles 532, 634 Gill v. Gill 272, 287 — v. — and Hogg 242 Gillett v . Gillett 165, 235 Gilpin v. Gilpin 33 Ginger v. Ginger 270 Gipps v. Gipps and Hume ... 34 Gladstone v. Gladstone 163, 180, 197, 246, 486, 497, 565 Glennie v. Glennie and Bowles 34, 543, 564 Goderich v. Goderich and Lara Forder and Kelsey... 225 Godrich v. Godrich ...143, 224 Goldney v. Goldney 297 Goldsmith v. Goldsmith, Dalrymple, Nicolls and Wooley 239 Gompertz v. Kensit 108 Gooch v. Gooch 43 Goodden v. Goodden 161 Goode v. Goode and Ham- son 49 Goodheim v. Goodheim and Frankinson 156 Goodwin v. Goodwin and Arnold 656 Gordon v. Gordon 483 v. and Bell.. 146 v. and Gran- ville Gordon 147, 256, 647 Gough v. Gough and Bayn- ton 543, 564 Goulder v. Goulder 14 Gower v. Gower, Pearson, Hill and Bunn 35, 59 XVI TABLE OF CASES PAGE Grafton v. Grafton 155 Grange v. Grange and Arendt 244 Grant v. Grant 269 v. — — and Bowles and Pattison 389 Graves v. Graves 72 Gray v. Gray (Q. P. inter- vening) 199 Greaves v. Greaves 106, 107 Green (falsely called Dalton) v. Dalton 110 v. Green ...26, 30, 41, 78 v. 88 v. and Sedg- Greenstreet v. Corny ns 130 Greenway v. Greenway 62 Grieve v. Grieve (Q. P. in- tervening) 202 Griffin’s Divorce Bill 274 Grose v. Grose 287 Gross! v. Grossi 294 Grosvenor v. Grosvenor 50 Grove, In re 14 Groves v. Groves and Tomp- son 58 Guest v. Shipley (falsely calling herself Guest) 95 Gyte v. Gyte and Mullineaux 137 H. H. v. P. (falsely called H.).. 130 H. (otherwise G.) v. G...177, 259 Haigh v. Haigh 160 Hakewill v. Hakewill 156, 157, 174 Halfen (otherwise Bodding- ton) v. Boddington ... Hall Hall 1 QQ .389, 564 65 -y ...40, 237 Hamerton v. Hamerton 150, 151, 269 Hamilton v. Hamilton 121 v. and Riding.. 195 v. and Pralormo 249 Hanbury v. Hanbury...60, 68, 91 v. 162 Hancock v. Hancock and Smith 285 PAGE Hancock (falsely called Peaty) v. Peaty 126, 127, 231, 432 Handford v. Handford 141 Handley v. Handley 142 Hardie v. Hardie 90, 418 Harding v. Harding 73, 87 v. 254 v. and Lance 564 Plarford v. Morris 125 Harling v. Harling 221 Harries v. Harries and Gre- gory 202 Harriman v. Harriman 219 Harris v. Plarris 32, 33, 79 v. 62 v. 151, 152 v. and Lam- bert 30, 45 v. and Milton 260 v. — — and Wood- den 271 Harrison v. Harrison 55 v. ...163,191 v. 236 Harrod v. Harrod 109 Harrop v. Harrop 202, 355 Hart’s Divorce Bill 24, 147 Hart v. Hart 39 Ilartopp v. Hartopp and Akhurst.. 180 v. — — and Cowley 363 Harvey (otherwise Farnie) v. Farnie 17, 123 v. Lovekin (other- wise Harvey) 258 Haswell v. Has well and Gil- bert... 107 v. — — - and San- derson 31, 71 Haviland v. Haviland 155 Hawes v. Hawes 165, 236 Hawke (Lord) v. Corri (call- ing herself Lady Hawke) 94, 108, 114 ILawkes v. Hawkes 151 Hawkins, In re, Ex parte Hawkins... 158 v. Hawkins and Hope 59 Hawks v. Hawks and Fen- wick 564 Hay v. Northcote 115 Hayward v. Hayward ...91, 155 Heal v. Heal 230 Heard v. Heard 220 TABLE OF CASES. XVII PAGE Heath v. Sanson 11 Hebblethwaite v. Hebble- th waite (Q. P. interven- ing) 269 Hechler v. Hechler and Ben- nett 247, 497 Heckscher v. Crosley and another 227 Henty v. Henty 70, 75 Hepburn v. Skirving 13 Plepworth v. Hep worth... 564, 565 Herbert v. Plerbert 97 Heyes v. Heyes and Mason.. 71 Higgins v. Higgins (K. P. showing cause)... (246 -y. The K. P.; The K. P. v. Carter 246 Pliggs v. Higgs and Hopkins 565 Hill v. Cooper 174 v. Hibbit 264 v. Hill 155 v. 217 v. 225 Hindmarsh v. Hindmarsh and Hussey 261 Hipwell v. Hipwell 249 Hitchcock v. Hitchcock 225 Hitchings v. Plitchings 141 Hoar v. Hoar 33 Hobson, Ex parte 295, 298 Hodges v. Hodges 36 Hodgson v. De Beauchesne. . . 11 , 12 v. Hodgson and Turner 80 Roberts v. Hodg- son Roberts and Whitaker. 177, 189 Plolden v. Holden 62, 63 v. and Pear- son 223 Holmes v. Holmes 83 v. Simmons (falsely called Holmes) 109, 111 Holt v. Holt and Davis. ..153, 156 Hooke v. Hooke 25,261,287 Hooper v. Hooper 78, 155 Hope v. Hope 87, 89 v. and Erdody. .. 179 Horne v. Horne 28, 346 Horner v. Horner 27, 125 Hough v. Hough 236 Houghton v. Hough ton... 41, 195 Howarth v. Howarth ...197, 198 Howe v. Howe 239 Hubbard (otherwise Rogers) v. Hubbard 176 Hudson v. Hudson 67 PAGE Hudson v. Hudson and Poole 196, 197 Hughes, In re 174 Hull v. Hull I2G Hulme v. Hulme 62 Hulse v. Hulse and Tavernor 194 (Q. P. intervening)... 241, 272 Hume v. Hume 17 Humphrey v. Williams 131 Hunt v. Hunt and Wright.. 43 v. 79 v. and Cooper... 138 Hunter v. Hunter and Ver- non 287 -y. (K. P. showing cause) 53 Hurley v. Hurley and Men- zies 14, 235, 551 Husey-Hunt v. Bozzelli 125 Huxtable v. Huxtable 77, 220 Hyde v. Hyde, Fellgate and others ...231, 605, 648 v. Hyde and Wood- mansee 96, 100 v. Hyde 160 v. — — 419 Hyman v. Hyman and Gold- man (K. P. showing cause) 42, 137, 193, 243, 247, 497 Hynes v. Hynes and Lake ... 53 I. Irwin v. Irwin and Layard. 242 Izard v. Izard and Leslie... 138 J. Jack v. Jack 17 Jackman v. Jackman and Willoughby 273 Jackson v. Jackson 197 (otherwise Macfar- lane) v. Jackson 127, 230 Jagger v. Jagger 221 Jago v. Jago and Graham ... 225 Jeapes v. Jeapes 66 Jeffers v. Jeffers 286 Jeffreys v. Jeffreys and Smith 57 Jenson v. Jenson 309 Jessop v. Jessop 201, 497 Jewell v. Jewell 297 Jinks v. Jinks 239 R.M.C. b XV111 TABLE OF CASES. PAGE Johnson v. Johnson (by her guardian ad litem) 57 Johnson v. Johnson 191 v. 222, 275 Johnstone v. Att.-Gen. and Hawkins cited 208 Jones v. Jones 157, 549 v. 287 Jopp v. Wood 11 Joseph v. Joseph and Went- zell 48 v. and Burn- hill 237 Joyce v. Joyce (Q. P. inter- vening) 246 Judkins v. Judkins 166 Jump v. Jump 179 K. I L - PAGE L. (otherwise B.) v. B 132 L. v. H 248 L. v. L 147 L. v. L. (falsely called W.).. 129 Lacey v. Lacey 309 Lacon v. Higgins 97, 283 Ladmore v. Ladmore 165 Lancaster v. Lancaster 30, 78, 250 Lander v. Lander 164 v. , Temple, Fox and Fox 59 Lane v. Lane 216 Laneuville v. Anderson 13 Langworthy v. Lang worthy. 167 j Lapington v. Lapington 30 Latham v. Latham and Get- hin 136, 164 Latour v. Teesdale 97 ; Lautour v. Lautour 51 v. Queen’s Proctor.. K. v. K. (otherwise R.) 469 Kay v. Duchesse de Pienne.. 262 v. Kay 77, 230, 235 Kaye v. Kaye 190 17. 229 Keane v. Keane 234 Keats v. Keats and Monte- zuma ...35, 40, 164, 229, 296 Keech v. Keech 69, 75 Keegan v. Smith 155 Kelly v. Kelly 65 t7. 153 v. - — - 450 Kemp-Welch v. Kemp-Welch and Crymes 234, 237 Kempe v. Kempe 152 Kennedy v. Kennedy 74 v. 90 Kenrick v. Kenrick 62 Kent v. Burgess 97, 263 Kerr v. Kerr 158 Kettle well v. Kettlewell 161, 163 Keys© v. Keyse and Maxw r ell. 124 King 17. King 270 King’s Proctor v. Carter ... 246 Kingsley, In re 174 Kippax v. Kippax 648 Kirk v. Kirk 162 Kirkman v. Kirkman 62 Knight v. Knight 68 Knox, In re 112, 120 Koch v. Koch 73 Kunski v. Kunski 238 196, 246 Lawford v. Davies 121 Lawrence v. Lawrence 482 Le Marchant v. Le Marchant and Radcliff 272 Le Mesurier v. Le Mesurier and others 3, 16, 17, 18 Le Sueur v. Le Sueur 2, 10, 15, 200 Leader v. Leader 286 Learmonth v. Learmonth and Austin 243 Lee v. Lee 224 Leeds v. Leeds 177 Leslie v. Leslie 153, 160 Letts 17. Letts 341 Levy 17. Levy and de Ror- nance 244, 286 Lewis v. Hayward 129 17. Lewis 194, 195, 230 Lightbody v. West and others 115 Limerick v. Limerick 267 Lindo 17. Belisario 265 Ling 17. Ling and Croker. .. 257, 389, 483 Linton, In re 158 Lister 17. Lister 148, 163 Lloyd 17. Lloyd 54 17. 261 17. and Chiches- ter 44 17. Petit jean (falsely calling herself Lloyd) 120 Lockwood v. Lockwood 62 Lodge 17. Lodge 74 TABLE OF CASSS, XIX PAGE Lollev’s Case (Ann Sugden (otherwise Lolley) v. Lolley) 15, 123 Long v. Long and Johnson... 138, 243 Lord v. Colvin 11, 12 v. Lord and Lambert. . . 135, 257 Lorriman v. Lorriman and Clair 130 Louis v. Louis 166 Loveden v. Loveden 152 Lowe v. Lowe 201, 355 Lowenfeld v. Lowenfeld 404 Lumley v. Victor 257 Lynch v. Lynch 646 M. M. (falsely called B.) v. B... 192 M. (falsely called C.) v. C.. 95, 131,229 M. (otherwise D.) v. D 131 M. (falsely called H.) v. H.. 130, 131 M. v. M 81 M. v. M. (otherwise A.).. 196, 200 Macartney v. Macartney ... 258 M £ Carthy v. De Caix 123 M'Cord v. M‘Cord, Ogle and Coxon 50 Macdonald v. Macdonald ... 70 M‘Kechnie v. M‘Kechnie ... 258 M‘Keever v. M‘Keever 68 Maclurcan v. Maclurcan 162 M‘Mullen v. Wadsworth. ..11, 14 Madan v. Madan and De Thoren 156, 564 Maghee v. McAllister ...122, 123 Mahoney v. McCarthy 173 Male v. Roberts 103 Mallinson v. Mallinson 145 Manders v. Manders 141 v. 216 Manning v. Manning... 13, 15, 67 Mansfield (falsely called Cuno) v. Cuno 95 Manton v. Manton and Stevens 239 March v. March 28, 257 v. and Palumbo 143, 144, 180, 181 Marchmont v. Marchmont. .. 411 Margetson v. Margetson ... 165, 237 Marriott v. Burgess 131 PAGE Marris v. Marris and Burke (Q. P. intervening) 34 Marsh v. Marsh 65, 143, 144 v. 188, 484 Marshall v. Hamilton 130 v. Marshall 84, 90 Martin v. Martin 65, 144 v. 73 v. and Velleman 309 Mason v. Mason 26, 55 v. 87, 88, 90i, 159, 414 v. Mitchell 170 Masters v. Masters (Q. P. intervening) 196 Mathyssen’s Case 44 Matthews v. Matthews 81 Maudslay v. Maudslay...l44, 187 Mawford v. Mawford 47 Maxwell v. M‘Lure 13 Mayhew v. Mayhew 32, 108 Maynard v. Hazelrigge 104 Meara v. Meara 73 Meddowcroft v. Gregory (falsely called Meddow- croft) 110 Medley v. Medley 163 Medway v. Medway 220, 238 Meredyth v. Meredyth and Leigh 186 Merton v. Merton 186 Mette v. Mette 102, 103, 125 Meyern v. Meyern and Myers 136 Michel v. Michel 88, 250 Michelson v. Michelson 33 Middletons. Janverin (falsely calling herself Middleton) 263 Midgley (falsely called Wood) v. Wood 110 Midland Rail. Co. v. Pye ... 173 Midwinter v. Midwinter... 186, 249 Miles v. Chilton (falsely call- ing herself Miles) 102, 122, 150, 351 Milford v. Milford 64, 145 Millar v. Millar 73 Millard v. Millard and Bastone 58 Miller’s Case 37 Miller v. Miller and Hicks.. 223 v. 230 Millward v. Millward and Andrews 231 Milne v. Milne and Fowler.. 178, 231 b 2 XX TABLE OF CASES PAGE Milne v. Milne 306 Milner v. Milner 68 Mogg v. Mogg 78 Moloney v. Moloney 83 Montague v. Montague 196 Moore v. Moore (Q. P. show- ing cause) 28, 41, 49 Moore v. Moore 160 v. , Chadwick and Griffiths 76 (falsely called Bull) v. Moore (or Bull) 178 Moorhouse and wife v. Lord and others 13 Moorsom v. Moorsora 32, 79 Mordaunt v. Moncrieffe ...23, 60 v. Mordaunt, Cole and Johnstone 22, 23 Morgan v. Morgan 80 v. and Porter 47, 51 Morphett v. Morphett ...67, 237 Morrall v. Morrall 167 Morris v. Davies 209 v. Morris 161 Morrissey v. Morrissey 186 Mortimer v. Mortimer 55 Moss v. Moss (otherwise Archer) 132 v. and Bush 155 Mozley-Stark v. Mozley-Stark and Hitchens 146 Mudge v. Adams 173 Mullineux, Ex parte 174 Munro v. Munro and Munro. 123 Munroe v. Douglas 12 Mycock v. Mycock 295 Mytton v. Mytton 41, 68 N. N r (falsely called M e) v. M e 130 Nairne v. Nairne 238 Narracott v. Narracott and Plesketh 136, 224 Nash v. Nash 80 Neeld v. Neeld 39, 62 Neil v. Neil 151 Nelson v. Nelson and How- son 240 Ne\ill v. Nevill 189 Newall v. Newall and Platt. 187 Newby v. Newby and White. 243 Newman v. Newman 55 Newsome v. Newsome 42 PAGE Newton v. Newton 165, 166 Niboyet v. Niboyet. ..3, 11, 16, 17 Nicholls v. Nicholls 156 Nicholson v. Drury Building Co 174 v. Nicholson 55 v. ...157, 233 v. and Ratcliffe 153, 462 Nicolas v. Nicolas 287,309 Nicolson v. Nicolson and Fairley 254 Noakes v. Noakes and Hill.. 165, 180 Noble v. Noble and Godman. 48, 122 Noblett v. Noblett and Ker- shaw 153 Noel v. Noel 179, 182, 250 Nokes v. Nokes 450 Norman v. Norman 43 Norris v. Norris, Lawson and Mason 241 v. and Gyles.. 178 Northey v. Cock 262 Northledge v. Northledge — 647 Norton v. Seton (falsely call- ing herself Norton) 129 Nott v. Nott 77,217 Nunneley v. Nunneley and Marrian 178 O. Ogden v. Ogden (or Philip).. 4, 96, 103 Ogilvie v. Massey 565 O’Gorman, In re, Ex parte Bale 136 Oldroyd v. Oldroyd 91 Oliver v. Oliver 62 Onslow v. Onslow, Jones and Campbell 383, 384 Oppenheim v. Oppenheim and Ricotti 179 Ottaway v. Hamilton 232, 583, 584 Otway, In re 158 v. Otway; Otway v. Otway and Holfer 68, 229 Ousey v. Ousey and Atkin- son 71, 195 Owen v. Owen 84 TABLE OF CASES. XXI P. PAGE P. V. S 96, 104, 129 Pace v. Pace 646 Paine v. Paine 41, 88, 140 Palmer v. Palmer. ..34, 40, 68, 122 v. 195 Parkinson v. Parkinson 76 v. and Cabot 396 Parr v. Parr and White 165 Parry v. Parry 60, 164 Parsons, In re 209 v. Parsons 196 Patch v. Patch 156 Paterson v. Paterson 64 Patrick v. Patrick 25 Patrickson v. Patrickson 262 Patten, In Goods of 10, 11 Pattenden v. Pattenden and Herzfield 199 Patterson v. Patterson and Graham 137, 194, 443 Patterson v. Patterson, Curtis and Dore 157 Payne v. Payne, Rod way and Eddels 272, 287 Peacock v. Peacock 35, 286 Pearce v. Pearce and French. 191 Pearson v . Pearson 87 Pegg v. Pegg and Gowing ... 53 Pegler v. Pegler and Russell. 135 Pellew v. Pellew and Berke- ley 55 Pemberton v. Pemberton 152 Penty v. Penty, Johnson and Sabingie 286 Perret v. Perret and Alt ... 307 Perrin v. Perrin 25, 84 Perry’s Case 37 Phillimore v. Machon 106 Philip v. Philip 143 Phillips v. Phillips 32, 33 v. 81 v. and Med- lyn 460 Pickard v. Pickard 68, 164 Pickavance v. Pickavance ... 222 Picken v. Picken and Sim- monds 35, 59 Pierce v. Pierce (Q. P. show- ing cause) 497 Piper v. Piper 221 Pitt v. Pitt 11, 17, 122 v. 40 -y. 286 Pizzala v. Pizzala 73 Platt and another v. Att.- Gen. of New South Wales. 13 PAGE Plowden v. Plowden 64 Pocock v. Pocock 181, 486 Pollack v. Pollack, Deane and Macnamara 200 Pollard v. Pollard 189 Pomero v. Pomero and Had- ley 43, 138 Ponsonby v. Ponsonby ...189, 249 Popkin v. Popkin 62, 270 Popkins v. Popkins 38 Portsmouth v. Portsmouth ... 126 Portugal v. Portugal 145 Potinger and others v. Wightman and others 10 Potter v. Potter 28, 48 Potts v. Potts and Bateman.. 257 Pouget v. Tomkins 110 Poulett Peerage Case : . 209, 255, 256 Powell v. Powell and Jones.. 156 Power v. Power 67 Pratt v. Jenner 191 Prescott v. Prescott 145, 158, 461 Pretty v. Pretty (K. P. showing cause) 53, 197 Price v. Price and Brown ... 41 Prichard v. Prichard ...68, 164 Pritchard v. Pritchard and Bean 136, 443 Proctor v. Proctor 79 v. ; Smith v. Pitman 71 Prole v. Soady 194 Prowse v. Spurway and Bow- ley (otherwise Spurway).. Ill Prydes v. Prydes and Wood.. 137 Pryor v. Pryor, Cowie and Macdonald. 54 v. and Shelford 184 Pyne v. Pyne 297 Q. Quartermaine v. Quarter- maine and Glenister 137, 193, 247, 497 Quicke v. Quicke 287 R. R. v. Billinghurst 108 R. v. Birmingham 106 R. v. Brampton 97 XXII TABLE OF CASES, PAGE PAGE R. v. Brawn 28 Robins v. Wolseley .... 32 R. v. Brighton 125 Robinson v. Robinson . 80 R. v. Chadwick 125 — v. 141 R. v. Chapman 106 — v . .151, 152 R. v. Clarke 108 — v. 221, R. v. Corrigan 213 243, 276 R. v. Cress well 120, 263 — v . and R. v. Ellis 114 Dearden 59 R. v. Howes 145 — v. Robinson and R. v. Manwaring 263 Gamble 241 R. v. Millis .115, 119 — v. Robinson and R. v. Penson 28 Lane . . 271 R. v. Rea 111 Robotham v. Robotham 159, R. v. St. Faith’s, Newton... 108 309, 337 R. v. St. Giles’s-in-the- Robson v. Robson 216 Fields ...27, 125 Roche v. Roche (K. P. show- R. v. Smith 111 ing cause) 53 R. v. Tibshelf 108 Rogers v. Rogers ....32, 33 R. v. Wroxton 101, 107, 108 V. .156, 235 Radford v. Radford 91 V. 192 Ramsden v. Brearley 173 Ratcliffe v. Ratcliffe and another 164, 266 Ravenscroft v. Ravenscroft and Smith (Q. P. inter- vening) 247 Rawlins v. Rawlins 163 Rayment v. R and Stuart; Chapman v. C and Buist 244 Redfern v. Redfern 258 v. , Herbert and others 540 Reed v. Passer and others.. 262 Rees v. Rees 152 Reeves v. Reeves 64, 80 Rice v. Shepherd 232 Richardson v. Richardson and Plowman 245, 542 Rickaby v. Rickaby and Swift 227, 250 Ricketts v. Taylor 270 Ridgway v. Ridgway 41 Rigg v. Hughes 525 Rippingall v. Rippingall and Delacour ; Rippingall v. Rippingall 89 Rippingall v. Rippingall and y. (Q. P. showing cause) ...42, 45, 202 Rogers (otherwise Briscoe) (falsely called Halmshaw) v. Halmshaw 122 Rolt v. Rolt 229 Ronalds v. Ronalds 153 Rooker v. Rooker and New- ton 97, 260, 264, 266 Rose v. Rose 43, 50 Ross v. Ross 34, 252 v. ■ 482 Routh v. Fry 26 Rowell v. Rowell 176 Rowlands v. Rowlands 221 Rowley v. Rowley 90 Royle v. Royle 222 Ruck v. Ruck 274 v. and Croft.. 252, 269 Ruding v. Smith (falsely calling herself Ruding)... 116 Russell v. Russell... 66, 74, 75, 91 v. 235, 656 v. and Mac- laren 298 Ruther v. Ruther 216 Ryder v. Ryder 145 Ryves v. Att.-Gen 510, 612 Lockhart 192 Ritchie v. Ritchie 78 Rix v. Rix 32 Robarts v. French 531 Roberts (falsely called Bren- nan) v. Brennan 4, 104 Robertson v. Robertson 229, 550, 551, 564 v. Robertson and Favagrossa 164 S. S. v. A. (otherwise S.) 130 S. (falsely called B.) v. B.... 154, .462 S. (otherwise G.) v. G... .131, 432 TABLE OF CASES, XX111 PAGE St. Devereux v. Much Dew- church 262 St. Paul v. St. Paul and Farquhar (Q. P. inter- Sackville-West v. Att.-Gen.. 510 Sanders v. Sanders 234 Sansom v. Sansom 648 Sant v. Sant 67 Santo Teodoro v. Santo Teo- doro 18 Saunders v. Saunders 63 v. 166 v. 285 v. and Beck 186 Savary v. Savary 181 Schofield v. Schofield and Cowper 186 Schoolcraft v. Schoolcraft and Ruhmoor 258 Scott v. Att.-Gen. ...11, 123, 211 v. Jones 130 v. Scott 67 v. 86 v. 223 v. 233 (falsely called Se- bright) v. Sebright) 126 Scrimshire v. Scrimshire..l03, 263 Searle v. Price (falsely called Searle) 261 Seatel v. Seatel 178 Seddon v. Seddon and Doyle. 146, 225 241 Seller v. Seller 35, 49 Sergent v. Sergent and Weaver 52 Serrell v. Serrell and Bam- ford 25, 31, 253 Sewell, Ex parte 173 Seymour v. Seymour 146, 294 Sharpe (otherwise Morgan) v. Sharpe 176 Shaw v. Att.-Gen 15, 97, 122, 211 and others v. Gould, Moore and others... 15, 17, 45, 122 v. Shaw (K. P. show- ing cause) 53 Shedden v. Att.-Gen 206, 208 In re 210 Sheffield v. Sheffield and Paice 226 Sheldon v. Sheldon (Q. P. intervening) 200 PAGE Shelton v. Shelton and Campbell 192 Shepherd, In re ...95, 96, 211, 262 Sheppard v. Sheppard 547 Sherwood v. Ray 27, 104, 124 Shields v. Shields 17 Shilson v. Att.-Gen 210 Shine v. Shine 646 Shirley v. Wardrop (falsely called Shirley) 158 Short v. Short and Bolwell... 55 Shorthouse v. Shorthouse ... 161 Sichel v. Lambert 263 Sickert v. Sickert 72 Sidney v. Sidney 161, 165 Simmons v. Simmons 62 Simonin (falsely called Mal- lac) v. Mallac 4, 15, 97, 102, 103 Sinclair’s Divorce Bill 3, 274 Sirrell v. Sirrell 238 Skidmore v. Murray 50 Skinner v. Skinner 141 Slater v. Slater and Bolder- sou 382, 517 Slaytor v. Slaytor 286 Smallwood v. Smallwood — 81 Smith v. Smith 62, 151 v. 75 v. .87, 414 .... 165 .... 218 .... 294 .... 647 v. 665 v. (J. M. Nowers, intervener)... 223, 530 Smith v. Smith and Charles- worth 253 v. and Graves.. 183 v. and Palk 137, 249 v. — — and Tre- meaux 460 v. , Major, Child and Rabett...229, 550, 551, 564 Smith, In re, Rigg v. Hughes 525 Smithe v. Smithe and Rou- pell 184, 242, 483 Smyth v. Smyth 150 Smythe v. Smythe. ..30, 78, 250 Snape v . Snape 220, 222, 275 Snelling v. Snelling 483 Snook v. Snook and Woola- cott (Q. P. showing cause) 28, 48 Snow v. Snow 36, 38 XXIV TABLE OF CASES, PAGE Somerville v. Somerville ...9, 13 v. and Webb 550 Sopwith v. Sopwith 270 v. ...543, 564 Sottomayor v. De Barros 4, 17, 96, 97, 102 (otherwise De Barros) v. De Barros. ..101, 103 Sowden v. Sowden 191 Sparrow (falsely called Har- rison) v. Harrison 130 Spedding v. Spedding and Spilsbury v. Spilsbury 297 Spratt v. Spratt 143 Squire v. Squire and O’Cal- laghan 54, 165 Squires v. Squires 297 Stace v. Stace 89 Stagg v. Edgcombe 129 Stallwood v. Tredger 120 Stanes v. Stanes 90 Stanhope v. Baldwin (other- wise Gosster) (falsely called Stanhope) 110 Stanhope v. Stanhope 195 Stanley v. Stanley 161 Starbuck v. Starbuck and Oliver 59 Stavart v. Stavart 17 Stedall v. Stedall 187 Steer, In re 121 Sterbini v. Sterbini 30 Stevens v. Stevens and Field. 200 Stevenson v. Stevenson 30 Stickland v. Stickland 72, 75 Stoate v. Stoate 166, 199, 233, 493, 565 Stoker v. Stoker, Skidmore and Murray; Stoker v. Stoker 47, 48, 50 Stokes v. Stokes 222 Stone v. Stone 32, 33 v. — 151 v. 242 v. and Apple- ton.. 134, 224, 226 v. — — - and Brown- rigg 178 Storer v. Storer 189, 191 Story v. Story and O’Connor 43, 50, 137 Studdy v. Studdy 34 Studholme v. Studholme and Cullum (Q. P. showing cause) 201 PAGE Stumpel v. Stumpel and Zepfel 309, 310 Styles v. Styles and Jackson. 48 Suart v. Suart (otherwise Hodgson) 190 Sudlow v. Sudlow 309 Sugg v. Sugg and Moore ... 35 Sug^ate v. Suggate 67, 144, 297, 564 Sullivan v. Sullivan (falsely called Oldacre). 109 v. Sullivan 25, 80 v. , Leahay, Madden and Slaney 647 Sussex Peerage Case 265 Sutton v. Sutton and Peacock 389 Swift v. Swift 88, 274 v. 88 Sykes v. Sykes 161, 257, 457 v. — and Smith... 181, 261, 486 Symington v. Symington 145 Symonds v. Symonds and Harrison 181 Symons v. Symons (Q. P. intervening) 52 Synge v. Synge 76 T. Taplen v. Taplen and Cowen (Q. P. intervening) 248 Tartt, Ex parte 298 Taylor v. Taylor 63 v. 70 v. 152 v . 483 v. and Darg.. 225, 275 v. and Wol- ters 135 Temple v. Temple and Laing 338 Templeton v. Tyree and Templeton (falsely called Tyree) 108 Theobald v. Theobald 88 Thomas v. Head 173 v. Thomas 191 Thomasset v. Thomasset..l46, 168 Thompson v. Rourke 94, 424 v. Thompson 66 — — v. 69, 75, 173 v. 180 TABLE OF CASES, XXV PAGE Thompson v. Thompson and Johnson. .154 , 156 v. Thompson and Sturmfells .142, 233 Thomson v. Thomson and Rodschinka 176 Thornley v. Thornley ... 30 Timmings v. Timmings ...36 , 37 Todd v. Todd ...46, 162 Tollemache v. Tollemache ... 15, 55, 286 Tomkins v. Tomkins 64 (Q. P. intervening) .246, 497 Tonsro v. Tonge, Anderson and Eykyn 455 Tongue v. Allen 108 v. Tongue .110, 114 Tooth v. Barrow 110 Topper v. Topper 271 Tovey v. Lindsay 123 Townend v. Townend ... 458 Townsend v. Townsend 70 Townson v. Townson and Bucknall 237 Tree v. Quin .104, 110 Tress v. Tress 90 Triibner v. Triibner and Cristiani .309, 310 Tucker, Ex parte 414 Tupper v. Tupper and Terrell 185 Turner v. Meyers (falsely calling herself Turner) . . . 126, 128 Turner (Miss) Case 125 (falsely called Thomp- son) v. Thompson (or T. v. T.) 9, 19, 123 Turner v. Turner 38 Turton v. Turton 33, 38 Tuthill v. Tu thill 79 Twentyman v. Twentyman. .. 162 Twistleton v. Twistleton and Kelly 153 U. U n (falsely called F s) v. F s 130 Udny v. Udny 11, 18 Ulverstone Union v. Park 210, 255 Underwood v. Underwood ... 162 PAGE United States v. Drummond 13 Upton v. Att.-Gen 210 In re 510 V. Vallance v. Vallance 190 Vallentine v. Vallentine 611 Vaucher v. Solicitor to the Treasury 14 Vera Cruz , The 531 Vere’s Case 44 Virgo v. Virgo 27, 274 Vivian v. Vivian 483 v. and Water- ford 245 W. W. v. W 130, 257 Waddell v. Waddell 67 v. and Craig 653 Wade v. Wade (Brooke in- tervening) 201, 248 Wain v. Wain and Eve (K. P. showing cause) 51 Wait v. Wait and Flower 248 Wakefield’s Case 126 Wakefield v. Mackey 108, 109 Waldegrave Peerage 117 Wales v. Wales and Cullen. .. 26, 256 Walker v. Walker 67, 256 v. 80 v. and Law- son 237 v. , Nicoll and Craig 225 Wallace v. Wallace 266 Wallscourt v. Wallscourt ... 63 Walmesley v. Walmesley ... 65 Walpole v. Walpole and Chamberlain.. 287 v. Walpole and Goddard 186 Walton v. Walton ...34, 217, 221, 276, 537 Ward v. Day 267 v. Ward 69, 154, 232 Waring v. Waring 63 Warren v. Warren 162, 189 XXVI TABLE OF CASES, PAGE Warrender v. Warrender... 10, 15, 96, 123 Warter v. Warter...l24, 211, 510 Warwick v. Warwick 238 Wassell v. Wassell 220 Waterhouse v. Waterhouse... 149, 472 Waters v. Waters and Gentel 25 Watkins v. Watkins 158, 162 Watton v. Watton and Oastler 194 Waudby v. Waudby and Bowland 238 Weatherley v. Weatherley ... 269 Weber v. Weber and Pyne. .. 156 Webley v. Webley 141 Webster v. Webster and Mitford 145 Weir, In Goods of 174 Welde (alias Aston) v. Welde 129, 130 Weldon v. Weldon ...86, 88, 647 Weller v. Weller 164 Wells v. Cottam (falsely called Wells) 104, 341, 564 Wells v. Wells and Hudson.. 152 Wenham v. Wenham 221, 276 West v. West and Parker 242 Westcott v . Westcott (K. P. showing 1 cause) 246 Westlake v. W. (otherwise Williams) 262 Westmacott v. Westmacott. . . 267 Westmeath v. Westmeath 62, 63, 152 Wharton (Mrs.) Case 125 Wheeler v. Wheeler and Rhodes 201 Whicker v. Hume 9 Whieldon v. Whieldon 160 Whitcombe v. Whitcombe ... 10 White v. White (Q. P. show- ing cause)... 248 v. and Jerome. 273 Whitmore v. Whitmore 64 v. 153 v. and Brettell 242 Whittaker v. Whittaker 653 Whittingham’s Trusts 174 Wliitton v. Whitton 177, 266 Whitworth v. Whitworth and Thomasson 28, 49 Wickham v. Wickham 122 Wight v. Wight and Field.. 242 PAGE Wigley v. Solicitor to Treasury 211 Wigney v. Wigney..l88, 236, 250 Wilcooks v. Wilcocks 162 Wilcox v. Wilcox 217 Wilkins v. Reynolds 131 v. Wilkins 227, 531 Wilkinson v. Wilkinson 126, 147, 167 Williams v. Dormer (falsely called Williams) 11, 15 v. Homfray 95, 132 v. Williams ...35, 221 v. 70 v. 80 v. 269 v. 270 v. 450 v. and Padfield. 272 v. and Pocock 309 Williamson v. Williamson and Bates 59 Wilson, In re 122 v Wilson 12, 15, 55, 565 v. 39 v. 131 v. 152 v. 246 v . 268 v. 613 v. and Howell 155 Wiltshire v. Prince 110 Wing v. Taylor (falsely call- ing herself Wing) 109, 120 Wingfield and Blew, In re... 547 Winscom v. Winscom and Plowden 41, 242 Winstone v. Winstone and Dyne 164 Witt v. Witt 145 Wood v. Wood 157 v. 163 v. and Stanger 240 v. and White.. 524 Woodey v. Woodey 89 Woods v. Woods 27, 125 Woolnoth v. Woolnoth 141 Wootton-Isaacson v. Woot- ton-Isaacson 190 Wormald v. Neale and Wor- mald (falsely called Neale) 110 TABLE OF CASES. XXV11 PAGE Worman, In Goods of 174 Worsley v. Worsley 39 v. and Wig- nail 179 v. and Worsley 193 Wright v. Elwood (falsely calling herself Wright)... 108, 110 Wrightman v. Wrightman... 222 Wyke v. Wyke (K. P. show- ing cause) 48, 53 Wynne v. Wynne 72, 186 X. PAGE X. v. Y 273 Y. Yarrow v. Yarrow 60, 91 Yeatman v. Yeatman 70 v. and Rummell 71, 78, 234 Yelverton v. Longworth (or Yelverton)... 121 v. Yelverton. ..2, 10, 15 Youell v. Youell, Terrass and Burleigh (Q. P. inter- vening) 247 ( xxix ) LIST OF STATUTES. — ♦— STATUTES PRINTED IN APPENDICES B. AND C. B. PAGE 1. Matrimonial Causes Act, 1857 (20 & 21 Viet. o. 85) ...692—703 2. 11 „ 1858 (21 & 22 Viet. c. 108)... ...703—707 3. 11 „ 1859 (22 & 23 Viet. c. 61) 707, 708 4. 11 „ 1860 (23 & 24 Viet. c. 144)... ...708—710 5. 11 „ 1864 (27 & 28 Viet. c. 44) ... 710 6. 91 „ 1866 (29 & 30 Viet. c. 32) ... 711 7. 11 „ 1868 (31 & 32 Viet. c. 77) ....712, 713 8. 11 „ 1873 (36 & 37 Viet. c. 31) ... 713 9. 11 „ 1878 (41 & 42 Viet. c. 19) ... 714 10. 11 „ 1884 (47 & 48 Viet. c. 68) ... 714 11. 11 „ 1907 (7 Edw. 7, c. 12) ... 715, 716 C. 1. 8 & 9 Viet. c. 113, s. 1 (admission of certain documents in evidence) 717 2. 14 & 15 Viet. c. 40, ss. 1, 12, 21, 22 (certificates of marriages in India) 718, 719 3. 14 & 15 Viet. c. 99, s. 14 (admission of certain documents in evidence) 720 4. 17 & 18 Viet. c. 80, s. 58 (certificates of marriages in Scotland) 720 5. 21 & 22 Viet. c. 93 (Legitimacy Declaration Act) 758 6. 28 & 29 Viet. c. 64 (Colonial Marriage Act) 742 7. 31 & 32 Viet. c. 61 (Consular Marriage Act) 743 8. 32 & 33 Viet. c. 68 (Evidence Amendment Act, 1869) 720, 721 9. 42 & 43 Viet. c. 8 (registration of births, deaths, and mar- riages (army)), 1879 725 — 727 10. 42 & 43 Viet. c. 11 (Bankers’ Books Evidence Act, 1879). ..721 — 723 11. 42 & 43 Viet. c. 29 (marriages on board her Majesty’s ships) 743 12. 44 & 45 Viet. c. 68 (Judicature Act, 1881) 736—738 13. 45 & 46 Viet. c. 75 (Married Women’s Property Act, 1882), s. 17 733, 734 14. 47 & 48 Viet. c. 20 (Greek Marriages Act) 744, 745 15. 47 & 48 Viet. c. 61 (Judicature Act, 1884), s. 14 739 16. 49 & 50 Viet. c. 27 (Guardianship of Infants Act, 1886)... 755 — 758 XXX LIST OF STATUTES. PAGE 17. 51 & 52 Viet. c. 46 (Oaths Act, 1888) 723—725 18. 52 Viet. c. 10 (Commissioners for Oaths Act, 1889) 727 — 732 19. 53 & 54 Viet. c. 44 (Judicature Act, 1890) 739, 740 20. 54 & 55 Viet. c. 50 (Commissioners for Oaths Act, 1891) 733 21. 54 & 55 Viet. c. 53 (Judicature Act, 1891) 740, 741 22. 56 & 57 Viet. c. 63 (Married Women’s Property Act, 1893) ... 735 23. 57 & 58 Viet. c. 16 (Judicature Act, 1894) 742 24. 58 & 59 Viet. c. 39 (Summary Jurisdiction (Married Women) Act, 1895) 758 25. 61 & 62 Viet. c. 58 (Marriage Act, 1898) 746 — 750 26. 62 & 63 Viet. c. 27 (Marriages Validity Act, 1899) 750, 751 27. 1 Ed. 7, c. 23 (Marriages Legalization Act, 1901) 751, 752 28. 3 Ed. 7, c. 26 (Marriages Legalization Act, 1903) 753, 754 29. 5 Ed. 7, sc. 23 (Provisional Order (Marriages) Act, 1905)... 758, 759 30. 6 Ed. 7, c. 40 (Marriage with Foreigners Act, 1906)... 759 — 762 31. 7 Ed. 7, c. 16 (Evidence (Colonial Statutes) Act, 1907)... 762, 763 32. 7 Ed. 7, o. 47 (Deceased Wife’s Sister’s Marriage Act, 1907) 764, 765 33. 9 Ed. 7, c. 39 (Oaths Act, 1909) 765, 766 PART I. A SUMMARY OF ^l)c Jaw RELATING TO DIVORCE AND MATRIMONIAL CAUSES. THE PRINCIPLES AND PRACTICE IN’ Divorce and Matrimonial Causes. CHAPTER I. JURISDICTION. “ The Probate, Divorce, and Admiralty Division of the High Court of Justice” inherits from the Court of Divorce and Matrimonial Causes, for which it was substituted by the Judicature Acts of 1873-75, power (partly given by the substantive enactments of the Matrimonial Causes Act, 1857, and subsequent statutes, and partly derived from the jurisdiction of the Ecclesiastical Courts trans- ferred to the old Court by the 6th section of that Act) to pronounce decrees of — 1. Dissolution of Marriage. 2. Judicial Separation. 3. Nullity of Marriage. 4. Restitution of Conjugal Rights. 5. Jactitation of Marriage. 6. To establish Legitimacy and the Validity of Marriages, and the right to be deemed Natural Born Subjects (a). These may be called decrees in original petitions, but, besides these decrees, the Court has jurisdiction in matters (a) Legitimacy Declaration Act, 1858 (21 & 22 Viet. c. 93). D.M.C. 1 Subject- matter. Original petitions, what are. 2 Subsidiary- petitions. Foreign, meaning of term in Divorce Court. Isle of Man. Channel Islands. JURISDICTION. subsidiary to or consequent on such original matters, as — 7. Reversal of Decree of Judicial Separation. 8. Damages against an Adulterer, and how such are to be applied . 9. Custody of Children. 10. Provision for Wife. 11 . Concerning Settlements of the Property of Parties to certain Matrimonial Suits. 12. An Appellate Jurisdiction from the decisions of Magistrates in certain cases (b). 13 . Concurrent J urisdiction with every other Division of the High Court of Justice by virtue of the Judicature Acts, 1873, 1875. In the Divorce Court (o), the terms “foreign” and “ abroad ” mean everywhere out of England proper, which term includes England, Wales, and the town of Berwick- upon-Tweed . Not very long after the creation of the Divorce Court, Sir Cresswell Cresswell said: “ It is a Court for England, not for the United Kingdom or for Great Britain: and, for the purposes of this question of jurisdiction, Ireland and Scotland are to be deemed foreign countries equally with Prance or Spain” (d). Similarly, the Isle of Man (e), the Channel Islands (/), (6) Mat. C. Act, 1878 (41 Viet, c. 19), s. 4; Summary Jurisdic- tion (Married Women) Act, 1895 (58 & 59 Viet. c. 39). ( c ) Since the coming into operation of the Judicature Acts it is of course incorrect to speak of the “ Divorce Court.” I have used the expression here and oc- casionally elsewhere for conveni- ence, applying it to the Probate, Divorce, and Admiralty Division when exercising jurisdiction in causes matrimonial. ( d ) Yelverton v. Yelverton (1859), 1 S. & T. 574, at p. 586; 29 L. J. P. 34; 1 L. T. 194. See also Bond v. Bond (1860), 2 S. & T. 93; 29 L. J. P. 143. (e) Davison v. Farmer and Grace (1851), 6 Ex. 242; 20 D. J. Ex. 177. (/) Le Sueur v. Le Sueur (1876), 1 P. D. 139; 45 L. J. P. 73; 34 L. T. 511. JURISDICTION. 3 and the Colonies, are foreign countries for the purposes of the Divorce Court. In the case of Niboyet v. Niboyet ( g ), it was held in the Court of Appeal by James and Cotton, LL. J J Brett, L.J., dissenting, overruling the decision of Sir Robert Phillimore in the Court below, that, although the parties to a marriage might never have acquired an English domicil, the English Divorce Court had power to dissolve their marriage if they had a bond fide residence, a matri- monial home in fact, in this country. But in the case of Le Mesurier v. Le Mesurier and Others (h) the J udicial Committee of the Privy Council held that: while mere residence in a country may be sufficient to justify the Courts of that country in ordering aliment or decreeing judicial separation, the only true test of jurisdiction to decree a divorce, according to interna- tional law, is the domicil for the time being of the married pair. Of course technically it is impossible to say that a decision of the Judicial Committee can overrule a decision of the Court of Appeal, even though, as in the case of Niboyet v. Niboyet (i), the Lords Justices differed. But taking into consideration the fact that the members of Council who decided the case of Le Mesurier v. Le Mesurier and Others consisted of the Lord Chancellor (Lord Herschell), Lord Watson, Lord Hobhouse, Lord Macnaghten, Lord Morris, and Sir Richard Couch, five out of six members being peers, there can be little doubt that it expresses what would be the view taken by the House of Lords, should the point ever come before it. I think, therefore, it may safely be assumed that the deci- sion of the majority of the Court of Appeal in Niboyet (ff~) (1878), 4 P. D. 1; 48 L. J. See also Sinclair’s Divorce Bill, P. 1; 39 L. T. 486. • (1897) A. C. 469. (h) (1895) A. C. 517; 64 (i) Supra. L. J., P. O. 97; 72 L. T. 873. 1 ( 2 ) Colonies. Niboyet v. Niboyet. Le Mesurier v. Le Mesurier and Others. Effect of. 4 JURISDICTION. Dicey on “ Conflict of Laws,” extracts from. “ Domicil,” what is ? “ Indepen- dent person.” “ Dependent person.” v. Niboyet is no longer of any practical value as an authority. If this be so, it may now be taken as settled law that, in order to found the jurisdiction of the Court in suyts for dissolution of marriage, the parties must be domiciled in this country. In all other suits it would seem one or other of the two elements, domicil or residence, must be present in the case, with the exception of suits for nullity of marriage, in which the Court has jurisdiction to inquire into the validity of any marriage contracted in England, no matter whether the parties to it be British or foreign (k). It is therefore of the last importance, in considering the jurisdiction of the Court, to have a clear conception of the exact meaning and nature of the word “ domicil.” I have therefore — subject only to a few trifling verbal altera- tions — extracted the following definitions and rules from Professor Dicey’s well-known work(Z): — “ ‘ Domicil ’ means the country which .... is con- sidered by law to be a person’s permanent home. “ ‘ Independent person ’ means a person who, as regards his domicil, is not legally dependent upon the will of any other person. “‘Dependent person’ means any person who is not an independent person as hereinbefore defined, and in- cludes: — “ (i) a minor; “ (ii) a married woman. (7c) Simonin ( falsely called Mallac ) v. Mallac (1860), 2 S. & T. 67; 29 L. J. P. 97; 2 L. T. 327 ; Sottomayor ( otherwise Be Barros ) v. Be Barros (1877), 3 P. D. 1; 47 L. J. P. 23; 37 L. T. 415; Roberts ( otherwise Brennan) v. Brennan, (1902) P. 143; 71 L. J. P. 74; 86 L. T. 599. See also Armytage v. Armytage, (1898) P. 178; 67 L. J. P. 90; 78 L. T. 689; Ogden v. Ogden (or Philip ), (1908) P. 46; 77 L. J. P. 34; 97 L. T. 827; Chetti ( Venugopal ) v. Chetti ( Venugopal ), (1909) P. 67; 78 L. J. P. 21; 99 L. T. 885. ( l ) “ The Conflict of Laws,” by A. V. Dicey, 2nd ed. (1908) p. 68, and pp. 82 — 160. JURISDICTION. 5 “ Eule 1 . — The domicil of any person is, in general, Dicey on the place or country which is, in fact, his permanent home, Laws^ Ct ° f but is in some oases the place or country which, whether extracts from, it be in fact his home or not, is determined to be hie home by a rule of law. “Eule 2. — No person can at any time be without a domicil . “Eule 3. — Subject to the exception hereinafter men- tioned, no person can have at the same time more than one domicil.” Exception. — A person within the operation of the Domicile Act, 1861, 24 & 25 Viet. c. 121, may possibly have one domicil for the purpose of testate or intestate succession, and another domicil for all other purposes. “Eule 4. — A domicil once acquired is retained until Domicil, it is Changed, how changed. “ (1) in the case of an independent person, by his own act; “ (2) in the case of a dependent person, by the act of some one on whom he or she is dependent. “ Eule 5. — Every independent person has at any given moment either — “ (1) the domicil received by him at his birth (which Domicil of domicil is hereinafter called the domiqil of on £ m » origin); or “ (2) a domicil (not being the same as his domicil of of choice, origin) acquired or retained by him while in- dependent by his own act (which domicil is hereinafter called a domicil of choice). “ Eule 6.— Every person receives at (or as from) birth a domicil of origin — “ (1) In the case of a legitimate child born during of legitimate his father’s lifetime, the domicil of origin of mfant ’ the child is the domicil of the father at the time of the child’s birth. “ (2) In the case of an illegitimate or posthumous illegitimate, 6 JURISDICTION. Dicey on “ Conflict of Laws,” extracts from. foundling, legitimated person. Domicil, how long retained. Dependent person, domicil of. Infants, domicil of, general observations as to. child, the domicil of origin is the domicil of his mother at the time of his birth. “ (3) In the case of a foundling, the domicil of origin is the country where he is born or found. “ (4) In the case of a legitimated person, the domicil which his father had at the time of such per- son’s birth becomes and is considered to be the domicil of origin of such person. “Bule 7. — Every independent person can acquire a domicil of choice, by the combination of residence (J actum) and intention of permanent or indefinite resi- dence (. animus manendi ), but not otherwise. “ Bule 8. — “ (1) The domicil of origin is retained until a domicil of choice is in fact acquired. “ (2) A domicil of choice is retained until it is abandoned, whereupon either — (i) a new domicil of choice is acquired; or (ii) the domicil of origin is resumed. “Bule 9. — The domicil of every dependent person is the same as, and changes (if at all) with, the domicil of the person on whom he i,s, as regards his domicil, legally dependent. “Sub-Bule 1. — Subject to the exceptions hereinafter mentioned, the domicil of a minor is during minority determined as follows: — “ (1) The domicil of a legitimate or legitimated minor is, during the lifetime of his father, the same as, and changes with, the domicil of his father. “ (2) The domicil of an illegitimate minor, or of a minor whose father is dead, is, whilst the minor lives with his mother, the same as, and changes with, the domicil of the mother. “ (3) The domicil of a minor without living parents, or of an illegitimate minor without a living JURISDICTION. 7 mother, with, th changed by his guardian. extracts from. “Exception (1) to Sub-Rule: The domicil of a minor is not changed by the mere re-marriage of his mother. “ Exception (2) to Sub-Rule: The change of a minor’s home by a mother or guardian does not, if made with a fraudulent purpose, change the minor’s domicil. “Sub -Rule 2. — The domicil of a married woman is Married during coverture the same as, and changes with, the woman ' domicil of her husband. possibly is the same as, and changes Dicey on i * ■ i j? i * i' Conflict of 3 domicil oi his guardian, or may be Laws,” “ Rule 10. — A domicil cannot be acquired by a depen- dent person through his own act. “Sub-Rule 8. — Where there is no person capable of changing a minor’s domicil, he retains, until the termi- nation of his minority, the last domicil which he has received . “Rule 11. — The last domicil which a person receives whilst he is a dependent person continues, on his becoming an independent person, unchanged until it is changed by his own act. “Sub -Rule 1. — A person on attaining his majority retains the last domicil which he had during h is minority until he changes it. “Sub-Rule 2. — A widow retains her late husband’s last domicil until she changes it. “ Sub -Rule 3. — A divorced woman retains the domicil which she had immediately before, or at the moment of divorce, until she changes it. “Rule 12. — The domicil of a person can always be ascertained by means of either — “ (1) a legal presumption; or “ (2) the known facts of the case. “Rule 13. — A person’s presence in a country is pre- sumptive evidence of domicil . “Rule 14. — When a person is known to have had a Dependent person. Infant. Dependent person. Infant on attaining majority. Widow. Divorced woman. Domicil, how ascer- tained, legal pre- sumptions as to. 8 JURISDICTION. Dicey on “ Conflict of Laws,” extracts from. Evidences of domicil. domicil in a given country he is presumed, in the absence of proof of a charge, to retain such domicil. “ Rule 15. — Any circumstance may he evidence of domicil which is evidence either of a person’s residence ( factum ), or of his intention to reside permanently (i animus manendi) within a particular country. “ Rule 16. — Expressions of intention to reside perma- nently in a country are evidence of such an intention, and, in so far, evidence of domicil. “Rule 17. — Residence in a country is prima facie evidence of the intention to reside there permanently ( animus manendi ), and, in so far, evidence of domicil. “Rule 18. — Residence in a country is not even prima facie evidence of domicil when the nature of the residence either is inconsistent with, or rebuts the presumption of the existence of, an intention to reside there permanently (< animus manendi ) .” Persons whose employment rebuts presumption of resi- dence are defined by Professor Dicey to be: — “ (1) Prisoners. “ (2) Convicts. “ (3) Exiles or refugees. “ (4) Lunatics. “ (5) Invalids residing abroad on account of health. “ (6) Officials generally. “ (7) Ambassadors. “ (8) Consuls. “ (9) Persons in military or naval service. “ (10) Persons in Indian service. “ (11) Ecclesiastics. “ (12) Servants. “ (13) Students.” We see then from the above that there are three kinds of domicil: — (1) Domicil of origin. (2) Domicil by law. (3) Domicil of choice. JURISDICTION. 9 The following are a few dicta and judicial decisions on the subject of domicil: — “ Domicil generally.” This is defined by Lord Wens- leydale as “ Habitation in a place with the intention of remaining there for ever, unless some circumstances should occur to alter that intention” ( m ). “Domicil of origin.” This is not the place where a person happens to be born, but the home of his parents (n ) ; that is, of course, in cases where the parents are known, as explained in Professor Dicey’s rules, as given above (a). “ The domicil of origin is that arising from a man’s birth or connections but the term “ domicil of origin ” is more correct than “domicil of birth,” for the mere accident of birth does not of itself affect the domicil, as if the son of an Englishman were born on a journey in foreign parts, his domicil would follow that of his father (p ) . “The domicil given by law.” This includes those to whom the law assigns the domicil of others on whom they depend; the wife during marriage, the minor, &c. (q ) . The husband’s actual and the wife’s legal domicil are prima facie one, wherever the wife may be personally resident (r) . By marriage, the domicil of the husband becomes that of the wife ( s ) . The domicil of a child is that of his father, and he is unable during pupilage or until he is sui juris to acquire another (t). But where an infant’s domicil of birth is Judicial dicta % Domicil generally. Domicil of origin. Domicil by law of wife, of child, ( m ) Whicker v. ILume and Others (1858), 7 H. L. C. 124; 28 L. J., Ch. 396; 4 Jur., N. S. 933. («) Phill. P. & M. of Jurispr. 165. (o) For a case as to the domicil of origin of the children of a naturalized British subject, see Bourgeoise, In re, 41 Ch. D. 310; 58 L. T. 431. (p) /Somerville v. Somerville (1801), 5 Ves. 749a, 787. (q) Phill. P. & M. of Jurispr. 165. (r) Chichester v. Donegal, 1 Add. 19. (s) Dalhousie v. McDouall, 7 Cl. & Fin. 817. See also Turner (Jalsely called Thompson ) v. Thompson (1888), 13 P. D. 37, reported as T. v. T ., 57 L. J. P. 40; 58 L. T. 387. ( t ) Somerville v. Somerville 10 JURISDICTION. Domicil. of widow. Domicil of wife. changed during infancy by a change of domicil on the part of the father, it would seem that the altered domicil cannot be regarded as the infant’s domicil of origin (u ) . And if the father die, a domicil acquired by the surviving mother becomes the domicil of the infant (x ) . But where a widow changes her domicil, as by marrying again, it does not necessarily follow that she imposes such change of domicil on her inf ant child ( y ) . Not only is the husband’s domicil the legal domicil of the wife, but she cannot acquire a separate domicil for herself, even though her husband may have been guilty of conduct which would furnish her with a good defence to a suit by him for restitution of conjugal rights^). So where a domiciled Englishman married a native of the United States, and she left him, and went back to her native State, and there took proceedings against him for a divorce, and the husband Refused to recognize the American Court and did not appear; the English Court held that the American decree dissolving the marriage was not binding here, and could not affect the husband s rights in this country ( a ) . This rule has been held to apply, though the parties are living apart with or without a deed of separation (J>), even where the husband is guilty of adultery and desertion (c) . (1801), 5 Ves. 749a, 787; Patten , In goods of (1860), 6 Jur., N. S. 151. (u) Craignish, In re; Craignish v. Hewitt, (1892) 3 Ch. 180; 67 L. T. 689, G. A. ( x ) Potinger and Others v. Wightman and Others (1817), 3 Meri. 67. (y) Beaumont, In re, (1893) 3 Ch. 490; 62 L. J., Ch. 923. ( z ) Yelverton v. Yelverton (1859), 1 S. & T. 574; 29 L. J. P. 34; 1 L. T. 194; Whitcomb v. Whitcomb (1840), 2 Curt. 351. See also Chichester v. Donegal , 1 Add. 19; Dalhousie v. McDouall, 7 Cl. & Fin. 817. (a) Green v. Green and Sedg- wick, (1893) P. 89; 62 D. J. P. 112; 68 L. T. 261. (b) Daly, In re (1858), 27 L. J., Ch. 751 ; Warrender v. Warrender, 2 Cl. & Fin. 488. (c) Dolphin v. Robins and Paxton (1859), 7 H. L. C. 390; 29 L. J. P. 11; Le Sueur v. Le Sueur (1876), L. R., 1 P. & D. 139; 45 L. J. P. 73; 34 L. T. 511. JURISDICTION. 11 But it is otherwise after ,the wife has obtained a judicial separation (d), and a fortiori where a decree of dissolution has been pronounced (e) ; neither is the domicil of the wife that of the husband to such an extent as to compel her to submit to the jurisdiction of the tribunals of any country in which he may choose to acquire a domicil (/). “ Domicil of choice ” arises where a person, having the power of changing his domicil, voluntarily abandons his existing domicil and settles in another country with the intention of permanently residing there ( animo manendi (g)). Questions of change of domicil are pro- verbially difficult to determine, owing to the ambiguity of ordinary conduct. Thus a person may have lived many years abroad without having acquired a foreign domicil, if it appears that his reason for doing so was a desire to avoid his creditors or the like ( h ) . So an ambassador or other public officer does not acquire a domicil in the country where he resides as a matter of duty, although, under certain circumstances, a foreign ambassador was held to have acquired an English domi- cil ( i ) . No presumption in favour of acquiring a domicil of choice arises from residence in a foreign country whilst on naval or military duty ( k ) . Domicil. After judicial separation. Domicil of choice. Ambassador, &c. Officer in army or navy. (d) Williams v. Dormer ( falsely called Williams ) (1852), 2 Robert. 505; 16 Jur. 3 66. ( e ) Scott v. Att.-Gen. (1886), 11 P. D. 128; 55 L. J. P. 57; 56 L. T. 924. (/) Pitt v. Pitt (1864), 10 Jur., N. S. 735; 4 Macq. IT. L. Cas. 627; 10 L. T. 626; Briggs v. Briggs (1880), 5 P. D. 163; 49 L. J. P. 38. ( g ) Lord v. Colvin (1859), 28 L. J., Ch. 361. See also Cross, Ex parte, Duleep Singh, In re (1890), 7 M. B. R. 228. See also XJdny v. XJdny (1869), L. R., 1 Sc. App. 458; McMullen v. Wadsworth, 14 App. Cas. 631; 59 L. J., P. C. 7; 61 L. T. 487. ( [h ) Bell v. Kennedy and , Others (1868), L. R., 1 Sc. App. 321. (i) Heath v. Sansom (1851), 14 Beav. 441. See also Niboyet v. Niboyet (1878), 4 P. D. 1; 48 L. J. P. 1; 39 L. T. 486. ( k ) Brown v. Smith (1852), 15 Beav. 444; 21 L. J., Ch. 356; Patten , In goods of (1860), 6 Jur., N. S. 151; Hodgson v. De Beauchesne (1858), 12 Moore, P. C. C. 285; Jopp v. Wood, 11 12 JURISDICTION. Domicil of choice. Presumption of law. Acquired domicil not lost by mere abandon- ment. Acquisition of new domicil ques- tion of fact. The burden of proof is on the party setting lip the abandonment of the domicil of origin (1), for the pre- sumption of liaw is against .such an intention (m ) . Slighter evidence is, however, required to warrant the conclusion that a man intends to abandon an acquired domicil to resume his domicil of origin, than is necessary to justify the conclusion that he means to abandon his domicil of origin and acquire a new one (n) . An acquired domicil is not lost by mere abandon- ment (o), for to effect a change of domicil there must be an actual intention to abandon the old domicil and acquire a new one (p) . Mere expressions of intention not to renounce a domicil of origin cannot prevail against the evidence of intention collected from the acts of the party and the general facts and circumstances of the case, if those are otherwise suffi- cient to constitute a domicil abroad (g) . On the other hand, the mere declaration of an intention to change a domicil, without an actual change of residence, is inopera- tive to create a new domicil (r ) . The question whether or not a person has acquired a domicil of choice is not a question of law but of fact, and has to be decided by the evidence in each particular case. Thus in Wilson v. Wilson (s), a Scotchman married a L. T. 406; Drevon v. Drevon (1864), 34 L. J., Ch. 129; 10 L. T. 370. ( l ) CrooJcenden v. Fuller (1859), 1 S. & T. 441; 29 L. J. P. 1; 1 L. T. 70; Att.-Gen. v. Rowe (1862), 1 H. & C. 31; 31 L. J., Ex. 314; 6 L. T. 438. (m) Hodgson v. He Beauchesne (1858), 12 Moore, P. C. C. 285; Att.-Gen. v. Rowe, 1 H. & C. 31; 31 L. J., Ex. 314; 6 L. T. 438. Qn) Lord v. Colvin (1859), 28 L. J., Ch. 361. (o) Munroe v. Douglas (1820), 5 Madd. 379. Qp) Att.-Gen. v. Blucher de W ahlstadt (1864), 3 H. & C. 374; 34 L. J., Ex. 29; 11 L. T. 454. (#) Steer , In re (1858), 3 H. 6 N. 594; 28 L. J., Ex. 22. {f) Brown v. Smith (1852), 15 Beav. 444; 21 L. J., Ch. 356; Aikman v. Aikman and Aikman (1861), 3 Macq. H. L. Cas. 854; 7 Jur., N. S. 1017; 4 L. T. 374. (*) 2 L. R., P. & D. 435; 41 L. J. P. 74; 27 L. T. 351. JURISDICTION. 13 Scotch woman in Scotland, and cohabited with her in Scotland, until he discovered her adultery; he thereupon, in 1866, broke up his home and removed to England; and in 1871 he instituted a suit in England f or the dissolution of his marriage, on the ground of the adultery committed in Scotland previous to the separation: he swore in his examination that he had left Scotland with the intention of taking up his permanent abode in England. The Court, believing his evidence, held that he had abandoned his domicil of origin, and acquired an English domicil, and that it had jurisdiction to dissolve the marriage ( t ). The following are some of the more recent decisions on the subject of domicil of choice: — Evidence of subsequent as well as prior acts is admis- sible for the purpose of ascertaining a person’s domicil at ( t ) It is scarcely within the scope of this work to multiply cases on the subject of domicil, but the following are some of the cases cited by the late Mr. Browne in the earlier editions of his book on “ Divorce,” on the point "whether an individual has or has not lost his domicil of origin: Somerville v. Somerville (1801), 5 Ves. 749a, 787; Dal- housie v. McDouall, 7 Cl. & Fin. 817 ; In re de Capdevielle (1864), '2 H. & O. 985 ; 33 L. J., Ex. 306 ; Bempde v. Johnstone; Graham v. Johnstone (1796), 3 Ves. 198; Manning v. Manning (1871), L. R., 2 P. & D. 223; 40 L. J. P. 128; 24 L. T. 196; Craigie and Craigie v. Lewin and Other (1843), 3 Curt. 435; 7 Jur. 519; Platt and Another v. Att.-Gen . of New South Wales (1878), L. R., 3 App. Ca. 336; 47 L. J., P. C. 26; 38 L. T. 74; Doucet v. Geoghegan (1878), 9 Ch. D. 441; Maxwell v. McClure (1860), 3 Macq. H. E. Cas. 852; 2 L. T. 65; Moorhouse and Wife v. Lord and Others (1863), 32 L. J., Ch. 295; 10 H. L. C. 272; 8 L. T. 212; United States (Pres.) v. Drummond (1864), 32 L. J., Ch. 501; 33 Beav. 449; Laneuville v. Anderson and Guichard (in- tervening) (1860), 2 S. & T. 24; 30 L. J., P. & M. 25; 3 L. T. 304; Att.-Gen. v. Fitzgerald (1856), 25 L. J., Ch. 743; Allar- dice v. Onslow (1864), 33 L. J., Ch. 434; 9 L. T. 674; Hepburn v. Shirving (1861), 9 W. R. 764; Att.-Gen. v. Pottinger (1861), 31 L. J., Ex. 284; 4 L. T. 368; 6 H. & N. 733; Att.-Gen. v. Kent and Others (1862), 31 L. J., Ex. 391; 6 L. T., N. S. 864. Domicil of choice. 14 JURISDICTION. Domicil. Of choice. Evidence as to. a given period ( u ) . Domicil is established not by asser- tion but by conduct (a?) . A husband and wife, both of English parents, resident in France, married in England, and subsequently co- habited in France. The husband, on coming of age, made a declaration of his intention to retain his English nationality. Both he and his father intended returning to England, when they had made enough money. The husband subsequently deserted his wife, and led a wandering life in Australia and New Zealand. Held, that his domicil was English (y). Where the domicil of all the parties to a marriage was English, and the husband subsequently endeavoured to found a fictitious domicil in Scotland, to enable his wife to obtain a decree in the Scotch Courts, by getting an address in Glasgow and pretending to carry on the business of a tea merchant there, it was held that he had not acquired a Scotch domicil ( z ) . A husband whose domicil of origin was English entered the Ceylon Civil Service, and acquired a domicil there. Subsequently he took rooms in England, in- tended to have his children educated here, that his wife should remain here until their education was finished, and that they should remain here even if he were obliged to return toi Ceylon, and the husband intended to rejoin them, either on leave or after his retirement from the Ceylon Civil Service; the Court held that his domicil was English (a ) . (u) Grove, In re; Vaucher v. Sol. to Treasury (1888), 40 Ch. Div. 216; 58 L. J., Ch. 57; 59 L. T. 587. ( [x ) McMullen v. Wadsworth , 14 App. Cas. 631; 59 L. J., P. C. 7; 61 D. T. 487. (jy') Goulder v. Goulder , (1892) P. 240; 61 L. J. P. 117. (z) Bonaparte v. Bonaparte ( otherwise Megone ), (1892) P. 402; 62 L. J. P. 1; 67 L. T. 5311. (a) Hurley v. Hurley , 67 L. T. <384. For a case, in which it was held that the facts were sufficient to show that a person had aban- doned his domicil of origin and JURISDICTION. 15 I now propose to notice a series of later cases, com- mencing with Le Sueur v. Le Sueur (&), decided in March, 1876. The earlier cases, so far as they are any longer of value, are fully noticed by the learned Judges who de- cided these eases, to whose judgments I must refer those who require fuller information on this most important subject. I have taken the cases in the order in which they are reported, but, as will be seen, this is not always the order in which they came bef ore the Court. In Le Sueur v. Le Sueur (5), the parties were originally domiciled in Jersey, married in Jersey, and cohabited in Jersey. After the husband had deserted her and gone to America, and not before, the wife came to reside in Eng- land, where she filed a petition for the dissolution of her marriage on the ground of her husband’s adultery and desertion. The only question was whether the wife, by coming to .acquired a domicil of choice, see Att.-Gen. v. Winans (1901), 85 L. T. 508; and for a later case, in which the direct opposite was held by the Scotch Courts, see Brooks v. Brooks’s Trustees, 4 F. 1014, Ct. of Session; Annual Digest, 1903 (Mews’), 129. (6) (1876), 1 P. D. 139; 45 D. J. P. 73; 34 L. T. 511. See also the following cases, cited in the judgment of Sir Robert Phillimore: Dol'phin v. Robins and Paxton (1859), 7 H. L. 417, 418; Williams v. Dormer (Jalsely called Williams ) (1852), 2 Robert. 505; Deck v. Deck (1860), 2 S. & T. 90; 29 L. J. P. 129; 2 L. T. 542; Tollemache v. Tollemache (1859), 1 S. & T. 557; 30 L. J. P. 113; 2 L. T. 87; Yelverton v. Yelverton (1859), 1 S. & T. 574; 29 L. J. P. 34; 1 L. T. 194; Simonin (Jalsely called Mallac ) v. Mallac (1860), 2 S. & T. 67; 29 L. J. P. 97; 2 L. T. 327; Bond v. Bond (1860), 2 S. & T. 93 ; 29 D. J. P. 143 ;, 2 L, T. 543; Brodie v. Brodie (1861), 2 S. & T. 259; 30 L. J. P. 185; 4 L. T. 307 ; Manning v. Manning, L. R., 2 P. & D. 223; 40 L. J. P. 40; 24 L. T. 196; Shaw v. Att.-Gen. (1870), L. R., 2 P. & D. 156; 39 L. J. P. 81; 23 L. T. 322; Wilson v. Wilson, L». R., 3 P. & D. 435; 41 L. J. P. 74; 24 L. T. 351; Shaw and Others v. Gould, Moore and Others (1868), L. R., 3 H. L. 55; 37 L. J., Ch. 433; 18 L. T. 833; Lolley’s Case, Ann Sugden (otherwise Lolley') v. Lolley (1812), 2 Russ. & Ry. 237; War- render v. Warrender (1835), 2 Cl. & Fin. 488. Domicil. Cases on. 16 JURISDICTION. Domicil. reside in this country after her desertion, could so far acquire a distinct domicil here as to render her husband amenable to the jurisdiction of the English Court. Sir Robert Phillimore held that the wife had not acquired such a domicil, and that the English Court had no jurisdiction. Residence In the case of Niboyet v. Niboyet (c), the facts were only formerly s q 0I qly as follows: the petitioner and respondent were held sufficient / # 1 • r for divorce. married at Gibraltar in 1856, and cohabited together in Spain, France and Sweden, but never in England. In 1859, the respondent deserted the petitioner. The re- spondent was in the French Consular service, which he had entered in 1848. In 1862 he first came to England, where he acted as French Consul at Sunderland, which appointment he held till 1869. From 1869 to 1875 he held various appointments for his government abroad. In the latter year he returned to this country and acted as consul, first at Sunderland and afterwards at Newcastle- upon-Tyne, where he was served with the present peti- tion in 1876. The adultery alleged against him was committed in Sunderland in 1867 and subsequent years. The respondent appeared under protest and pleaded to the jurisdiction of the Court. It was never in dispute that he was a domiciled French- man. The domicil of origin of the wife was English. On these facts Sir Robert Phillimore held, that the Court had no jurisdiction to inquire into the charges against the respondent. His Lordship’s decision was overruled in the Court of Appeal by James and Cotton, LL.JJ. (Brett, L.J., dissenting), whose decision has, as we have seen (ante, p. 3), been in its turn overruled, to all intents and purposes, by the decision of the Judicial Committee of the Privy Council in the case of Le Mesurier v. Le Meswrier and Others ( d ). O) (1878), 4 P. D. 1; 48 L. J. id) (1895) A. O. 517; 64 L. J., P. 1; 39 L. T. 486. P. C. 97; 72 L. T. 873. The JURISDICTION. 17 The very important cases of Harvey ( otherwise Farnie) v. Farnie (e) and Sottomayor ( otherwise De Barr os) v. Be Bwros (/), the former of which went up to the House of Lords, were decided about the same time as Niboyet v. Niboyet , that is, in 1878. But though the element of domicil enters largely into the consideration of both these cases, the jurisdiction of the English Court was never questioned in either of them, and they will be found under the head of Nullity of Marriage, to which portion of this work they properly belong. In the next reported case, Firebrace v. Firebrace (g), Sir James Hannen held that he had no jurisdiction against a respondent domiciled in Australia, who had been temporarily resident in England, after he had left this country, in a suit for restitution of conjugal rights. But this case was decided in 1878, six years before the passing of the Matrimonial Causes Act, 1884 (47 & 48 Viet. c. 68), as to which see post, Chap. IV., p. 84. In fact, the case is only now of value for the sake of the facts on which the Court arrived at the conclusion that the effect of this decision on pre- vious decisions is thus summed up in the head-note in the Law Journal report, at p. 97: — “ Brodie v. Brodie, 2 Sw. & Tr. 259; Niboyet v. Niboyet, 4 P. D. 1; Jack v. Jack, 24 Sess. Cas. (2nd Series) 467 ; and Hume v. Hume, 24 Sess. Cas. (2nd Series) 1342, disapproved. Dicta of Lord Westbury, L. C., in Shaw v. Gould, L. R., 3 E. & I. App. 55, 85; 37 L. J., Ch. 433, 447; and in Pitt v. Pitt, 4 Macq. App. Cas., approved.” See also Sta- vert v. Stavert , 9 Sess. Cas. (4th Series) 529; Shields v. Shields, 4 Sess. Cas. (2nd Series) 142. (e) (1882), 8 App. Cas. 43; 52 L. J. P. 33; 48 L. T. 273. See Bater v. Bater ( otherwise Lowe), (1906) P. 209; 75 L. J. P. 60; 94 L. T. 835, in which Harvey v. Farnie and Le Mesurier v. Le Mesurier and Others were applied; and Cas- trique v. Behrens (1861), 30 L. J., Q. B. 163, was approved. (/) (1877), 3 P. D. 1; 47 L. J. P. 23; 37 L. T. 415; (Queen’s Proctor intervening) (1879), 5 P. D. 94; 49 L. J. P. 1; 41 L. T. 281. (y) (1878), 4 P. D. 63; 47 L. J. P. 41; 39 L. T. 94. Domicil. Nullity. Restitution of conjugal rights. D.M.C. 2 18 JURISDICTION. Domicil. Restitution of conjugal rights. Dissolution. Domicil of wife. Matrimonial home. Husband leaving wife, and subse- quently suing in Kansas Court on ground of her desertion. respondent had not acquired a domicil in this country. These facts are too lengthy to be set out in the present edition of this work (h ) . Next in order in the Reports comes the case of Santo Teodor o v. Santo Teodor o (i ) . In that case an English lady consented to marry the eldest son land heir of a Neapolitan nobleman, on condition of their always having, after marriage, a residence in England, and of their residing there six months at least in each year. The marriage was celebrated in August, 1854, in England. A few months after the marriage a London Residence was taken and furnished by the parties, which they occupied for six months in each year, with two or three exceptions, from 1855 to 1872. In 1872, the lady separated from her husband in consequence of his cruelty and adultery, and she continued up to the hearing to reside in their London residence. The Court held that it had jurisdiction to dissolve the marriage, on the ground that the parties had always had a matrimonial home in England, but this was of course before the decision in Le Mesurier v. Le Mesurier and Others. In the case of Briggs v. Briggs (fc), the petitioner asked for the dissolution of her marriage with the respondent, on the grounds of his desertion, bigamy, and adultery. The marriage took place at Birmingham in 1862. Both the parties were domiciled English subjects. In 1868, the respondent, being in difficulties, left the country to avoid his creditors, and went to the United States. After attempting to establish himself in business at Cleveland, in Ohio; iat the sight of one of his creditors he fled two thousand miles farther west, and took up his residence in ( h ) In the course of his judg- (i) (1876), 5 P. D. 79; 49 ment in this case, Sir James L. J. P. 20; 42 L. T. 331. Hannen cited (amongst others) (&) (1880), 5 P. D. 163; 49 the case of TJdny v. TJdny (1869), L. J. P. 38; 28 W. R. 702. L. R., 1 H. L. (Sc.) 441. JURISDICTION. 19 the State of Kansas, and there, on the 9th of June, 1873, procured a divorcje from his wife on the ground of her desertion. On the 25th of September in the same year he Went through a ceremony of marriage: with another woman, with whom he had ever since cohabited. The wife had no notice of the divorce proceedings in Kansas, the Court there having required no evidence of service of the proceedings on the respondent, beyond the oath of the husband that he h ( ad posted to his wife in England notice of his petition, and it being also proved that such notice had been published in a Kansas news- paper during three weeks. Sir James Hannen held that the American divorce was of no effect, and pronounced a decree nisi for a dissolu- tion of the marriage. Substituting the wife for the husband as petitioner, the case of Green v. Green and Sedgwick {l) strongly re- sembles that of Briggs v. Briggs. In Turner ( falsely called Thompson) v. Thompson (m), the facts were as follows: The petitioner, a British sub- ject domiciled in England, was married on the 7th of November, 1872, in England to the respondent, a domi- ciled citizen of the United States, engaged in the United States marine service. The respondent was from time to time engaged professionally, and was absent from the petitioner, and the parties cohabited at various places in the United States and elsewhere. In 1879 the petitioner presented a petition in the United States for a dissolution of the marriage on the ground of the respondent’s impo- tence, the form of decree in the United States being a; dissolution of marriage, and not, as in this country, a declaration that the marriage was null and void. After obtaining a decree in that suit, she returned to England, (0 (1893) P. 89; 62 L. J. P. (m) (1888), 13 P. D. 37 (re- 112; 68 L. T. 261. ported also as T . v. T., 57 L. J. P. 40; 58 L. T. 387). 2 ( 2 ) D ssolution. Husband domiciled in America. Decree of dissolution in American Courts. 20 JURISDICTION. Dissolution. Nullity. Husband son of naturalised British subject. Question whether domicil English or Canadian. and instituted a suit in the English Court for a decree declaring the marriage null and void on the same ground. The Court, holding that the domicil of the wife was* American, and that the marriage had been totally and absolutely dissolved by the decree of the American Court, dismissed the petition. D’Etchgoym v. D'Etehgoyen (w) was a husband’s petition for a dissolution of his marriage on the ground of his wife’s adultery. The respondent appeared under protest, and filed an act on petition alleging that the Court had no jurisdiction on the ground that the peti- tioner’s domicil was not English. The petitioner was the son of French parents, and was born in France in 1854. When he was five years old he came with his parents to England, and he remained here with them for eight years. His father became naturalised as a British subject in 1874. Two years before the naturalisation took place, the petitioner, who was then eighteen years old, went to Canada, and in 1876 he purchased a farm in the province of Quebec, and carried on the business of a farmer there for six years. He voted at various elections, and he served for three years in a Canadian volunteer cavalry corps. In 1878 he was married to the respondent in Quebec, and in 1882 he let the farm and came back with the respondent and their children to England, and for two years he resided with his father. In 1883 he obtained from the French Government “letters of relief,” which exempted him from certain penalties which, as a French subject, he would have incurred by entering foreign military service without due permission. In and since 1885 he visited Canada several times on business con- nected with the letting of his farm, and it was stated that since 1884 he had been only seven months in England . O) (1888), 13 P. D. 132; 57 L. J. P. 104; 37 W. R. 64. JURISDICTION. 21 The respondent never went back to Canada after leav- Dissolution, ing that country in 1882. The adultery was alleged to Domicil of have been committed in England during the years 1884 petitioner, and 1885. Sir James Hannen held that the petitioner’s domicil was English, and had never ceased to he English, and that the English Court had therefore jurisdiction to hear the petition. In Armytage v. Armytage (o), the Court held that, Judicial where the parties were resident in this country at the separation ‘ beginning of a suit, it had jurisdiction to grant the wife home, a judicial separation on the ground of her husband’s cruelty, although the domicil of the parties was foreign, and although the acts of cruelty were committed abroad. In Chetti ( Venugopal ) v. Chetti ( V mug-opal ) (p), the petitioner (wife), who asked for a judicial separation on the ground of desertion, was an Englishwoman domiciled in England, and the respondent was a British subject — a Hindu — who was domiciled and permanently resident in India at the time of the petition, but was temporarily resident in England at the time of the marriage. The respondent denied the validity of the marriage on the ground that being a Hindu he could not marry anyone outside his own caste or who was not a Hindu by religion . The Court held that a f oreigner, or a British subject domi- ciled abroad, cannot set up against a marriage duly con- tracted in England according to English law, any personal incapacity imposed by the law of his domicil (p ) . In Garstin v. Garstin (q) it was held that a respondent Respondent who had appeared absolutely had thereby admitted the absolutely jurisdiction of the Court, and could not afterwards amend where juris- his appearance in order to plead to the jurisdiction. The doubtful. Judge Ordinary (Lord Penzance) said: “Sir C. Cress- 00 (1898) P. 178; 67 L. J. 21 ; 99 L. T. 885. P. 90; 78 L. T. 680. ( q ) (1865), 4 S. & T. 73; 34 GO (1909) P. 67; 78 L. J. P. L. J. P. 45. 22 JURISDICTION. Dissolution. Court can raise question of jurisdiction at any time, or send papers to King’s Proctor. Lunatics. Guardian appointed by Court. well having in Forster v. Forster (r) refused to allow a respondent, who had appeared absolutely, to amend her appearance and enter an appearance under protest, I feel myself bound by his opinion, though I have some doubt upon the question.” This rule of practice has undoubtedly been followed ever since. But it by no means follows because a respondent who has appeared absolutely is ref used leave to amend his plea and appear under protest, that the Court can ref use to notice its own want of jurisdiction, when brought to its notice by the King’s Proctor, or an ordinary intervener, or indeed in any other manner. Were it otherwise, parties might agree collusively to give the Court jurisdiction where no jurisdiction existed; and certain it is, whatever may be the case in an ordinary civil action, that in a quasi criminal proceeding like divorce affecting the status of the individual, no amount of agreement between parties can give the Court a jurisdiction which it does not possess, either inherently or by virtue of some statute. It was formerly held that a suit for dissolution could not be maintained against a lunatic (s) . Where a petition was presented for dissolution of the marriage, by reason of the adultery of the respondent, and an allegation having been made and supported by affidavits, that she was insane and incapable of pleading, a guardian was appointed by the Court for the purpose of raising that question on her behalf, and the issue was tried before the Court and a special jury (t ) . A petition was presented by a husband for a dissolution of his marriage, by reason of the adultery of his wife; on an allegation that the respondent was insane, an issue was directed to try that question, and the jury found that on ( r ) And Berridge (1862), 3 S. & T. 144; 31 L. J. P. 185; 9 L. T. 147. ( s ) Bawden v. Bawden (1861), 2 S. & T. 417; 31 L. J. P. 94; 6 L. T. 27. ( t ) Mordaunt v. Mordaunt, Cole and J ohnstone (1870), L. R., 2 P. & D. 382; 41 L. J. P. 42; 26 L. T. 812. JURISDICTION. 23 the day of the service of the citation the respondent was in such a condition of mental disorder as to be unfit and unable to answer the petition and to duly instruct her attorney for her defence, and that she had ever since remained, and then still did remain, so unfit and unable; thereupon the Judge Ordinary ordered that no further proceedings should be taken in the suit until the respon- dent recovered her mental capacity: Held, on appeal, by the majority of the Court, that such order was right ( u ) . But this decision was reversed on appeal to the House of Lords, where it was determined that, by the Matri- monial Causes Act, 1857, s. 31, a petitioner, upon proof of the adultery of his wife, is absolutely entitled to a decree dissolving the marriage, unless certain acts men- tioned therein are proved against him. In this case, in which the wife was found by a jury to have become lunatic before the institution of the suit, and had re- mained in this state: Held, that such lunacy was no ground for staying the proceedings, not being within the exceptions of the above section (x) . Where, in answer to a wife’s petition for judicial sepa- ration, a husband appeared under protest and filed an act on petition, alleging a Scotch domicil, and immediately commenced proceedings for a divorce in the Scotch Courts, the English Court granted an injunction, restraining the proceedings in the Scotch Courts until after the hearing of the act on petition ( y ). («) Mordaunt v. Mordaunt, (1874), L. R., 2 H. L. (Sc.) 374; Cole and Johnstone (1870), L. R., 43 L. J. P. 49; 30 L. T. 649. 2 P. & D. 109. (y) Christian v. Christian (a>) Mordaunt v. Moncriefe (1897), 67 L. J. P. 18; 78 L. T. 86 (1898). Lunatic. Lunacy no ground for stay of proceedings. J urisdiction restraining proceedings in foreign Court, 1898. 24 DISSOLUTION OF MARRIAGE. Grounds for dissolution. Mat. 0. Act, 1857 (20 & 21 Viet. c. 85), s. 27. Divorce by Act of Parlia- ment before 1857. Ireland at present time. CHAPTER II. DISSOLUTION OF MARRIAGE. Power to dissolve a marriage was first given to any tribunal in this country by section 27 of the Matrimonial Causes Act, 1857 (a), which proceeds as follows: “ 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 dissolved, on the ground that since the celebration thereof her husband has been guilty of inces- tuous 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 mensd et thoro , or of adultery coupled with de- sertion, without reasonable excuse, for two years or upwards.” Previous to the passing of this Act the powers of the Ecclesiastical Courts were limited to' granting what was termed a divorce a mensd et thoro , or from “ bed and board” as distinguished from a divorce a vinculo matri- monii, or dissolution of marriage ( b). The latter could only be obtained by means of an Act of Parliament; and even at the present day parties domiciled in Ireland can only obtain a dissolution of their marriage by this pro- cess ( have been occa- sioned by it, did not bar him of relief (b) . It was held that connivance need not necessarily be con- nivance at adultery with the particular person charged () Hodgson v. Hodgson and Turner, (1905) P. 233; 74 L. J. P. 140; 93 L. T. 446. (?) Williams v. Williams (1866), L. R., 1 P. & D. 178; 35 L. J. P. 85; 14 L. T. 770. See also Brown v. Brown and Shelton (1874), L. R., 3 P. & D. 202; 43 L. J. P. 47; 31 L. T. 272. (r) See Ciocci v. Ciocci (1859), 29 L. J. P. 30, 60; Finney v. Finney (1868), L. R., 1 P. & D. 483; 37 L. J. P. 43; 18 L. T. 489; Robinson v. Robinson (1877), 2 P. D. 75; 46 L. J. P. 47; 36 L. T. 414; Conradi v. Conradi, Worrall and JUDICIAL SEPARATION. 81 Delay is not a bar to a suit for judicial separation on the ground of cruelty, but it is a material fact for the consideration of the Court, as tending to show that there was no serious apprehension of further violence (s), or that the suit was instituted for some collateral object ( t ). An impediment to marital intercourse, supervening after marriage, does not constitute a defence for a suit instituted in consequence of adultery (u ) . By section 23 of the Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), “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 reasonable ground for the alleged desertion, where deser- tion 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 accordingly; but the reversal thereof shall not prej udice or affect the rights or remedies which any other person would ha,ve had in case such reversal had not been decreed, in respect of any debts, contracts, or acts of the wife incurred, entered into, or done between the times of the sentence of separation and the reversal thereof .” In the case of Phillips v. Phillips (x), the Court held, that the absence ref erred to in the statute is not an absence from want of notice, but a simple non-appearance. The Way (the Queen’s Proctor inter- vening) (1868), L. R., 1 P. & D. 514; 37 L. J. P. 55; 18 L. T. 659. (s') Smallwood v. Smallwood (1861), 2 S. & T. 397; 31 L. J. P. 3; 5 L. T. 324. (t) Cooke v. Cooke (1863), 3 S. & T. 126; 32 L. J. P. 154; 8 L. T. 644; Matthews v. D.M.C. Matthews (1859), 1 S. & T. 499; 29 L. J. P. 118; 2 L. T. 472; affirmed on appeal (1860), 3 S. & T. 161. (u) M. v. M. (1861), 31 L. J. P. 168. (x) (1866), L. R., 1 P. & D. 169; 35 L. J. P. 70; 14 L. T. 604. Defences to suit for, since 1857. Delay, how far a bar. Supervening impotence. Mat. C. Act, 1857, s. 23. Petition for reversal of decree of judicial separation on ground of absence. Mere non- appearance. 6 82 JUDICIAL SEPARATION. Defences to respondent had been personally served with the petition, suit for, since . r . 1 J J r ’ 1857. but had not entered an appearance, m consequence pi which he had received no notice of trial . His only excuse for his non-appearance at the hearing was that he was ignorant of the law, and had not seen fit to employ legal assistance. See further on the subject of this chapter, Part II. of this work, tit. “Practice in Suits for Judicial Separa- tion” (p. 405), and “Costs,” post, Chap. XVI. (p. 228). RESTITUTION OF CONJUGAL RIGHTS. 83 CHAPTER IV. RESTITUTION OF CONJUGAL RIGHTS. The suit for “Restitution of Conjugal Rights,” like the suit for “Judicial Separation,” treated of in the last chapter, is governed by section 22 of the Matrimonial Causes Act, 1857 (a); and the Court is still bound in these suits by the principles and rules of the Ecclesiastical Courts. In a suit for restitution of conjugal rights, the Ecclesi- astical Courts held that no facts were sufficient to bar the proceeding, except such as would have been sufficient to have entitled the parties to a divorce a mensa et thoro (&). Where the wife pleaded in answer to her husband’s suit for restitution that he had no fixed abode in this country, but that his residence wa,s in Ireland, that she was in delicate health and confined to her house, and that she was, in the opinion of her medical attendants, incapable of removing to Ireland without imminent danger to her health, such allegations were admitted to proof (c) . And where a suit for separation on account of the wife’s adul- tery had been dismissed on the ground of the husband’s connivance at her incest with his brother, it was held that it did not necessarily follow that the wife would succeed in a suit for restitution of conjugal rights (d). («) Ante, p. 61. 2 Add. 249. (6) Holmes v. Holmes (1755), (d) Denniss v. Denniss (1808), 2 Lee, 116. See also Barlee v. 3 Hagg. 353 (note). See also Barlee (1822), 1 Add. 305. 1 Drew v. Drew (1842), 1 No. of (c) Molony v. Molony (1824), Cas. 315. 6 ( 2 ) Mat. C. Act, 1857 (20 & 21 Viet. c. 85), s. 22. Defences : in Ecclesias- tical Courts. Answer should gene- rally show facts entitling respondent to a judicial separation. Exceptions : respondent’s delicate health. Petitioner, guilty of incest. 84 RESTITUTION OF CONJUGAL RIGHTS. Defences in Ecclesiastical Courts. Impropriety of conduct. Ante -nuptial incontinence. Cruelty. Ground for petition. Object of petition. Marshall v. Marshall. View of Sir James Hannen. Mat. C. Act, 1884. Short title. Periodical payments in lieu of attachment. Where in a suit for restitution brought by the wife the husband charged her with adultery, and proved gross impropriety of conduct, a separation was decreed (e). Ante-nuptial incontinence of the wife, discovered by the husband subsequent to the marriage (/), and cruelty com- mitted by the husband (g), were both held to be complete answers to a petition for restitution by the injured party. The only ground for a petition for restitution is that one of the married persons has withdrawn from living with the other, without lawful cause. Its primary object has always been assumed to be to obtain the return to cohabitation of the respondent. But it was said by Sir James Hannen, the then President, in 1 Marshall v. Marshall (h), that he had never known an instance in which it appeared that the suit was instituted for any other purpose than to enforce a money demand. To remedy this state of 1 things, the Act 47 & 48 Viet, c. 68, dated August 14th, 1884, and commonly known as the Matrimonial Causes Act, 1884, was passed. This statute is in the following terms: — “ Section 1 . This Act may be cited as the Matri- monial Causes Act, 1884. “Section 2. From and after the passing of this Act a decree for restitution of 1 conjugal rights shall not be enforced by attachment, but where the application is by the wife the Court may, at the time of making such decree, or at any time afterwards, order that in the event of such decree not being complied with within any time in that behalf limited by the Court, the respondent shall make to the petitioner such periodical payments as may be just, and such order may be enforced in the same manner as an order for alimony in a suit for judicial (e) Owen v. Owen (1831), 4 (g) Dysart v. Dysart (1844), 1 Hagg. 261. Robert. 109. (/) Perrin v. Perrin (1822), 1 (A) (1879), 5 P. D. 23; 48 Add. 1. L. J. P. 49; 39 L. T. 640. RESTITUTION OF CONJUGAL RIGHTS. 85 separation. The Court may, if it shall think fit, order that the husband shall, to the satisfaction of the Court, secure to the wife such periodical payment, and for that purpose may refer it to any one of the Conveyanoing Counsel of the Court to settle and approve of a proper deed or instrument to be executed by all necessary parties. “Section 3. Where the application for restitution of conjugal rights is by the husband, if it shall be made to appear to the Court that the wife is entitled to any property, either in possession or reversion, or is in receipt of any profits of trade or earnings, the Court may, if it shall think fit, order a settlement to be made to the satis- faction of the Court of such property, or any part thereof, for the benefit of the petitioner and of the children of the marriage, or either or any of them, or may order such part as the Court may think reasonable of such profits of trade or earnings to be periodically paid by the respondent to the petitioner for his own benefit, or to the petitioner or any other person for the benefit of the children of the marriage, or either or any of them . “Section 4. The Court may from time to time vary or modify any order for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again revive the same order wholly or in part, as the Court may think just. “Section 5. If the respondent shall fail to comply with a decree of the Court for restitution of conjugal rights such respondent shall thereupon be deemed to have been guilty of desertion without reasonable cause, and a suit for judicial separation may be forthwith instituted, and a sentence of judicial separation may be pronounced although the period of two years may not have elapsed since the failure to comply with the decree for restitution of con j ugal rights ; and when any husband who has been guilty of desertion by failure on his part Mat. C. Act, 1884. Settlements of wife’s property. Power to vary orders. Non-com- pliance with decree deemed to be desertion. 86 RESTITUTION OF CONJUGAL RIGHTS. Mat. c. Act, to comply with a decree for restitution of conjugal rights * has also been guilty of adultery, the wife may forthwith present a petition for dissolution of her marriage, and the Court may pronounce a decree nisi for the dissolution of the marriage on the grounds of adultery coupled with desertion. Such decree nisi shall not be made absolute until after the expiration of six calendar months from the pronouncing thereof, unless the Court shall fix a, shorter time. Custody, &c. of children. Act to apply to England only. # Marriage must be proved. “Section 6. The Court may, at any time before final decree on any application for restitution of conjugal rights, or after final decree if the respondent shall fail to comply therewith, upon application for that purpose, make from time to time all such orders and provisions with respect to the custody, maintenance, and education of the children of the petitioner and respondent as might have been made by interim orders during the pendency of a trial for judicial separation between the same parties. “Section 7. This Act shall not extend to Scotland or Ireland.” Previous to the passing of this Act, there was no power to make orders for the custody, maintenance and educa- tion of children in suits for restitution (t) . Shortly after the passing of this Act it was held by the Court of Appeal that disobedience to a decree for restitu- tion was no longer punishable by attachment (Ic ) . In a suit for restitution, the Court has no jurisdiction to make a decree until the marriage has been formally proved, and every petitioner in this form of suit is entitled to a decree, unless a respondent can establish a legal defence to the petition (l ) . ( i ) Chambers v. Chambers (1870), 39 L. J. P. 56; 22 L. T. 727. (*) Weldon v. Weldon, 54 L. J. P. 60; 52 L. T. 233. ( l ) Scott v. Scott (1865), 4 S. & T. 113; 34 L. J. P. 23; 12 L. T. 211. RESTITUTION OF CONJUGAL RIGHTS. 87 But a decree of restitution will not be granted in an undefended suit, upon mere proof of the marriage; evi- dence of the other facts of the case must be given (m) . A wife guilty of adultery cannot maintain a suit for restitution (w). By Buie 175 of the Divorce Court Buies, 1865, a written demand for cohabitation and restitution of con- jugal rights must be made by the petitioner upon the proposed respondent. The demand required by the rule need not be actually written by the petitioner. It can be made by a solicitor or friend on petitioner’s behalf, but must be couched in conciliatory terms, and must show a willingness on the part of the petitioner to resume cohabitation (o) . But if it is civil, and shows a desire to return to cohabi- tation, it may threaten legal proceedings in case of refusal (p) . Although the mode of application in these suits remains the same, the effect of the decree has been materially altered by the Matrimonial Causes Act, 1884, just quoted. Where a wife or husband refuses to comply with a decree of restitution, the Court, on the further petition of the husband or wife, will, as a matter of course, grant him or her a decree of judicial separation (g) . The statutory desertion arising under section 5, from non-compliance with a decree for restitution, has all the consequences of ordinary desertion for two years, and is (m) Pearson v. Pearson (1864), 33 L. J. P. 156. (m) Hope v. Hope (1858), 1 S. & T. 94; 27 L. J. P. 43; 31 L. T., O. S. 138. (o) Field v. Field (1889), 14 P. D. 26; 58 L. J. P. 21; 59 L. T. 880. See also Mason v. Mason (1889), 61 L. T. 304. (p) Smith v. Smith (1890), 15 P. D. 47; 59 L. J. P. 9; 62 L. T. 237. See also Elliott v. Elliott (1902), 85 L. T. 648, 0. A. (#) Harding v. Harding (1886), 11 P. D. Ill; 55 L. J. P. 59; 56 L. T. 919. But proof of marriage not alone sufficient. Conduct of petitioner. R. 175. Previous demand for cohabitation necessary. Need not be written by petitioner, but must be in civil terms. 1900. Demand, how made. Statutory desertion. 47 & 48 Viet, c. 68, s. 5. 1887. Husband disobeying decree of R. C. R. ; judicial separation granted. 1903. Revival. 88 RESTITUTION OF CONJUGAL RIGHTS. Statutory desertion. Mat. C. Act, 1884, s. 5. Previous adultery re- vived by such disobedience. Revival. Decree, what is sufficient compliance with. Disobedience to decree ; order for settlement. Wife’s pro- perty settled without power of anticipation. Mat. C. Act, 1884, s. 3. Evidence of conduct of respondent during cohabitation tendered on application therefore capable, after its condonation, of revival by subsequent adultery (r ) . A wife obtained a decree for restitution, which not; being complied with, she petitioned the Court for a decree of dissolution on the ground of desertion, arising from non-compliance with the decree, and adultery committed some time before. It was held that such desertion was on the same footing a,s desertion without cause for two years and upwards, and that the adultery was therejbjy revived (s) . And such statutory desertion will also revive adultery previously committed (s) . It is not a sufficient compliance by a husband with a decree for restitution that he has provided his wife with a suitable establishment and sufficient income ( t ) . Where a wife who has separate estate refuses to obey a decree for restitution, the Court may order her to settle a permanent maintenance on her husband (u ) ; but not where such separate estate is settled to her use without power of anticipation ( x ) . A husband refusing to comply with a decree may be ordered to secure to his wife for their joint lives a “periodical payment,” equal to one-third of their joint incomes ( y ) . On an application for a settlement or allowance under section 3 of the Matrimonial Causes Act, 1884, out of the estate of a husband or wife, against whom a decree of restitution has been pronounced in an undefended suit, it is competent for the petitioner to tender evidence as to the conduct of the respondent during cohabitation (z) . ( r ) Paine v. Paine, (1903) P. 263; 73 L. J. P. 1; 89 L. T. 588. (s) Big wood v. Big wood (1888), 13 P. D. 89; 57 L. J. P. 80; 58 L. T. 642. (; t ) Weldon v. Weldon (1883), 9 P. D. 52; 53 L. J. P. 9. ( u ) Swift v. Swift (1890), 15 P. D. 118; 59 L. J. P. 61; 62 L. T. 669. (x) Michell v. Michell (No. 1), (1891) P. 208; 60 L. J. P. 46; 64 L. T. 607. (y) Theobald v. Theobald (1889), 15 P. D. 26; 59 L. J. P. 21; 62 L. T. 187. ( z ) Swift v. Swift (No. 2), (1891) P. 129; 60 L. J. P. 14; 63 L. T. 711 ; Mason v. Mason (1889), 61 L. T. 304. RESTITUTION OF CONJUGAL RIGHTS. 89 The Court will not, on the hearing of a petition for restitution, consider any question a,s to amount of allow- ance to be paid by respondent to petitioner, in the event of a decree being pronounced and disobeyed. In the very early days of the Divorce Court it was held that a suit for restitution could not be sustained by a wife, who had committed adultery, although the husband had also committed adultery (a) . It is no answer to a wife’s suit for restitution of conjugal rights that the husband was induced to marry her on a false representation that she was pregnant by him (b) . Neither is it an answer that she has been guilty of im- propriety of behaviour not amounting to a matrimonial offence, nor yet that she has previously refused to permit conjugal intercourse ( be solemnized within three months after the complete publication of banns, a marriage will not be held invalid because the parties have married after the prescribed time if they have not done so knowingly and wilfully (e). In the following cases the marriages have been upheld in spite of irregularities in the publication of banns. Where the name given has been assumed by the party so long, or under such circumstances, that it has for all practical purposes superseded his or her real name (/). Where a woman was published as “widow” when she ought to have been published as “spinster” and also by a wrong name, there being no fraud ( g ) ; and where ille- 2 Hagg. Con. C. 175; Wakefield v. Mackey (1807), 1 Phill. 134 (notis) . (c) Hawke v. Corri ( calling herself Lady Hawke ) (1820), 2 ITagg. Con. C. 288. (d) Templeton v. Tyree and Templeton ( falsely called Tyree ) (1872), L. R., 2 P. & D. 420; 41 L. J. P. 86; 27 L. T. 429. In the course of his judgment in this case, Lord Penzance cited Rex v. Wroxton ( Inhabitants ) (1833), 4 B. & A. 641; 1 N. & M. 712; Tongue v. Allen (1835), 1 Curt. 38; Wright v. Elwood ( falsely calling herself Wright') (1837), 1 Curt. 49, 662. See also Gompertz v. Kensit (1872), L. R., 13 Eq. Cas. 369; 26 L. T. 95. (e) Reg. v. Clarke (1867), 10 Cox, C. C. 474; 16 L. T. 429. (/) JDiddear (Jalsely called Faucit , otherwise Savill) v. Fau- cit (1821), 3 Phill. 580; Rex v. St. Faith’s, Newton {Inhabi- tants) (1823), 3 D. & R. 348; Rex v. Billinghurst (. Inhabitants ) (1814), 3 M. & S. 250; but see Rex v. Tib shelf (. Inhabitants ) (1830), 1 B. & Ad. 190. ( g ) Mayhew v. Mayheiu (1812), 2 Phill. 11. NULLITY OF MARRIAGE. 109 gitimate children have been published by the name of either parent (Ji ) ; and where a petitioner, having obtained a decree dissolving her marriage with the respondent, sub- sequently re-married him after publication of banns, in which she was described by her married name, she having in the interval usually passed by her maiden name (i) . By 4 Geo. 4, o. 76, s. 16, the consent of parents and guardians is required to the marriage of a minor, “ unless there shall be no person authorized to give such consent” (Tc). Though 4 Geo. 4, c. 76, s. 2, requires banns to be pub- lished “according to the rubric prefixed to the office of matrimony in the Book of Common Pra,yer,” this part of the Act has always been considered to be directory. Neither is it necessary the actual words of the service should have been followed; but the ceremonies required by law, such as the publication of banns and the like, being complied with, when the hands of the parties are joined together, and the clergyman pronounces them to be man and wife, if they understand that by that act they have agreed to cohabit together and with no other person, they are married (l). The statutory and rubrical provisions, which require that two witnesses should be present at a marriage, and should sign the register, are merely directory . A marriage solemnized in the presence of one witness only is theref ore a good marriage (m) . In the following cases the marriages have been held ( [h ) See WaJcefield v. MacJcey (1807), 1 Phill. 134 (notis); Sullivan v. Sullivan (falsely called Oldacre') (1818), 3 Phill. 45. ( i ) Fendall (otherwise Gold- smid) v. Goldsmid (1877), 2 P. D. 263; 46 L. J. P. 70. (k) But see Holmes v. Simmons (falsely called Holmes') (1868), L. R., 1 P. & D. 523; 37 L. J. P. 58; 18 L. T. 770. (£) Harrod v. Harrod (1854), 1 K. & John. 4; 18 Jur. 853, in which case the parties were deaf and dumb. (m) Wing v. Taylor (falsely calling herself Wing) (1861), 2 S. & T. 278; 30 L. J. P. 258; 4 L. T. 583. Nullity. Minor, consent to marriage of. Banns to be published according to rubric in Book of Common Prayer, 4 Geo. 4, c. 76, s. 2. Witnesses to marriage. Marriages held null 110 NULLITY OF MARRIAGE. Nullity. and void on ground of undue pub- lication of banns. Absolutely wrong names. No banns ever published. In every case irregularities consented to by parties. Marriage by Superinten- dent-Regis- trar’s licence or certificate. null and void on the ground that there has been an undue publication of banns with the knowledge and consent of both parties. Where the banns have been published in absolutely wrong names (n ) ; where the man was published by his Christian name only instead of by his Christian and sur- name (o); where names have been added that did not belong to the parties (p ) ; where names have been omitted that did belong to the parties (g); where an illegitimate daughter has been published by a name that no longer belonged to her mother, and as the daughter of her mother’s brother (r); and where parties have been married without any publication of banns at all (s) . In some of the cases above cited there was apparently no intention to deceive anyone, and no one was deceived by the undue publication; but in every case the irregu- larity was committed with the knowledge and by the consent of the parties to the marriage. We pass next to the consideration of marriages solem- nized by virtue of a Superintendent-Registrar’s licence or certificate, the issuing of which is regulated by the following statutes: — 6&7 Will. 4, c. 85; 1 Viet. c. 22; 3 & 4 Viet. c. 72; and 19 & 20 Viet. c. 119; commonly known as the Registration Acts, which were passed for (n) Brealy ( falsely called 'Reed') v. Reed (1841), 2 Curt. 833; Pouget v. Tomkins (1812), 1 Phill. 499; Meddowcroft v. Gregory ( falsely called Meddow- croft) (1816), 2 Phill. 365; Wor- mald v. Reale and Wormald ( falsely called Neale) (1868), 19 L. T, 93. (o) Midgley ( falsely called Wood) v. Wood (1861), 30 L. J. P. 57. (p) Green (, falsely called Dal- ton) v. Dalton (1822), 1 Add. 289; Tree v. Quin (1812), 2 Phill. 14; Dobbyn v. Cor neck, lb. 102 . (i q ) Wiltshire v. Prince (1830), 3 Hagg. 332; Fellowes ( falsely called Stewart) v. Stewart (1814), 2 Phill. 240; Stanhope v. Baldwin ( otherwise Gosster ; falsely called Stanhope) (1822), 1 Add. 93; Tongue v. Tongue (1836), 1 Moore, P. G. C. 90. ( r ) Tooth v. Barrow (1854), 1 Ecc. & Add. 371. ( s ) Wright v. Blwood (Jalsely calling himself Wright) (1837), 1 Curt, 662. NULLITY OF MARRIAGE. Ill the purpose {inter alia) of facilitating purely civil mar- riages . These statutes provide for marriages either by the Superintendent-Registrar’s licence, or, without his licence, on his certificate issued after due notice. The former method is the more expensive, and is analogous to marriage by the ordinary’s licence; the latter is the less expensive, and is analogous to marriage by banns. The formalities necessary for obtaining the Superintendent- Registrar’s licence or certificate will be easily found by reference to the Acts themselves, ydiich, together with the marginal notes, are printed in full in the Appendices to this volume {t ) . A man may change his name by use and reputation, and if by use and reputation he has acquired a new name, he is not indictable under 19 & 20 Viet. c. 19, s. 2, for using a new name in signing a notice for the purpose of procuring his marriage under 6 & 7 Will. 4, c. 85 ( u ). In an Irish case decided in 1890, a Catholic priest cele- brated a marriage between a Catholic and a Protestant — according to the rites of the Catholic Church — at 4 o’clock p.m. in the sacristy of a Catholic chapel, in the presence of two witnesses, but with closed doors. No notice was given to the registrar, nor certificate issued by him in accordance with section 38 of 33 & 34 Viet. c. 110, an Irish Marriage Act. There was no evidence of any intention on either side to contract a sham marriage, or that the parties had knowingly and wilfully disregarded the statutory formalities. The Irish Court of Appeal (£) See also “ Hammick’s Mar- riage Laws of England,” p. 136. See also, as to “ due notice,” Holmes v. Simmons (Jalsely called Holmes ) (1868), L. R., 1 P. & D. 523; 37 L. J. P. 58; 18 L. T. 770; and Prowse v. S'purway and Bowley ( otherwise Spurway ) (1877), 46 L. J. P. 49; and as to necessity of both parties being privy to a false notice to invalidate it, see Reg. v. Rea (1872), L. R., 1 C. C. R. 365; 41 L. J., M. 0. 92; 26 L. T. 484. ( u ) Reg. v. Smith (1867), 4 F. & F. 1099. Nullity. Superinten- dent-Regis- trar’s licence or certificate. New name acquired by reputation. Mixed marriage in Ireland in sacristy of chapel; elosed doors. Irish Marriage Act, 33 & 34 Viet, c. 110. 112 NULLITY OF MARRIAGE. Nullity. Licences by virtue of the Consular Marriage Acts. Marriage in England. From 1756 to 1837. Where it could be celebrated. Registration Act, 6 & 7 Will. 4, c. 85 refused to allow one of the contracting parties to dispute the validity of the marriage (x ) . As to licences granted by a consul (or person acting for him) in any foreign country, see 12 & 13 Viot. c. 68, and 31 & 32 Viet. c. 61, post, Appendix (y). For some seventy years after the coming into opera- tion of the “Act for the better preventing of clandestine marriages” (26 Geo. 2, c. 33), which was passed to put a stop to the solemnization of marriages in the Fleet and other irregular places, it was (with two exceptions) neces- sary to a valid marriage in England that it should be solemnized by an ordained clergyman of the Church of England, and, unless by special licence, in some duly authorized place of worship belonging to the establish- ment. The exceptions were when both parties to the marriage were either Quakers or Jews, in which case they were allowed the special privilege of being married by their own officers, according to their own peculiar usages ( z ) . Persons of any other creed, whether Catholic or Protestant, if they desired to contract a valid mar- riage in England, could only do so by going to the State Church and being married by the State clergyman. This obligation, often galling and offensive to the con- sciences of individuals, was at last removed by the earliest of the Registration Acts (6 & 7 Will. 4, c. 85), which, besides providing a method of purely civil marriage, first enabled Catholics as well as Dissenters to be married by their own ministers in their own places of worship? (a?) Knox , In re (1889), 23 L. R. (Ir.) 542. (y) See also “ Hammick’s Mar- riage Laws of England,” pp. 258 —261. (z) But all exceptions in favour of Jews and Quakers relate only to formalities, not essentials. Therefore a marriage between two Jews, an uncle and a niece, was held invalid, though valid both by Jewish law and by the law of the place where it was contracted: De Wilton , In re, Be Wilton v. Monte pore, (1900) 2 Ch. 481; 69 L. J., Ch. 717; 8S L. T. 70. NULLITY OF MARRIAGE. 113 coupling, however, the removal of the disability with the condition that all such marriages should require the 'presence of a registrar to render them valid . But now, by section 4 of the Marriages Aot, 1898, “ . . . . marriages may be lawfully solemnised in the registered building, named in the notice of the marriages and in the superintendent-registrar’s certificate or certi- ficate and licence, issued pursuant to the provisions of the said Act” (the Marriage Act, 1836), “or apy Act amending the same, between and by the parties described in the notice and certificate or certificate and licence, according to such form and ceremony as they may see fit to adopt, without the presence of any registrar . . . By section 6, sub-section 1, parties to a marriage under this Act “ shall in some 'part of the ceremony make the following declarations: — “ ‘ I do solemnly declare that I know not of any lawful impediment why I, A. B., may not be joined in matri- mony to C. D.’ “And each of the parties shall isay to the other the words following: — “ c I call upon these persons here present to witness that I, A. B., do take thee, C. D., to be my lawful wedded wife (or husband),’ or in lieu thereof the words following : — I, A. B., do take thee, C. D., to be my wedded wife (or husband).’ “ (2) The aforesaid declarations shall be made in the presence of the authorized person hereinafter mentioned and two or more witnesses. “ (3) No marriage under this Act shall be solemnized in any registered building except in the presence of a person (in this Act referred to as an authorized person) certified as having been duly authorized for the purpose by the trustees or other governing body of the building, 8 Nullity. Marriages Act, 1898 (61 & 62 Yict. c. 58), s. 4. S. 6, sub-ss. 1, 2, 3. D.M.C. 114 NULLITY OF MARRIAGE. Nullity. Marriages Act, 1898. S. 1, sub-s. 3. Church of England marriages. 4 Geo. 4, c. 76, s. 22. Must be by clergyman of Established Church. Mock clergy- man, view of Ecclesiastical Courts. Marriage before a consul. or of some registered building in the same registration district.” And by section 1, sub-section 3, in the case of IC Roman Catholic registered buildings, the words ‘ trustees or governing body ’ shall include the bishop or vicar-general of the diocese.” Marriages by the ordinary’s licence, or after publi- cation of banns, in other words Church of England marriages, are still regulated by 4 Geo. 4, c. 76, s. 22, which enacts that, .... if any persons shall .... knowingly and wilfully consent to or acquiesce in the solemnization of such marriage by any person not being in holy orders, the marriages of such persons shall be null and void to all intents and purposes whatsoever.” But both parties to the marriage must be cognizant of the disregard of the law, in order to vitiate a marriage under the above section (a) ; and the Ecclesiastical Courts held that it was questionable whether a marriage, effected by imposing upon an innocent party a pretended clergy- man and a supposititious licence, might not bind the guilty artificer of such a fraud (&). As to marriage in any foreign country before a consul or person acting for him, see 12 & 13 Viet. c. 68, and, 31 & 32 Viet. c. 61 () Waterhouse v. Waterhouse, (1893) P. 284; 62 L. J. P. 115; 69 L. T. 618. Alimony and maintenance. Effect of section. Interim orders. Mat. C. Act, 1866, s. 1. Power to order monthly or weekly pay- ments to wife from husband on dissolution of marriage. 150 ALIMONY AND MAINTENANCE. Alimony and maintenance. Mat. C. Act, 1857, s. 6. Power to award alimony. Whence derived. Ibid. s. 22, On what principles exercised. Alimony pendente life , when payable in the Ecclesi- astical Courts. Pendente liie, practice of Ecclesiastical Courts. 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.” In cases other than suits for dissolution the Court derives its power to order alimony — whether pendente lite or permanent — from section 6 of the Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), by which “ .... all jurisdiction now vested in or exerciseable by any ecclesi- astical court or person in England in respect of divorces a mensd et thoro, suits of nullity of marriage, suits for restitution of conjugal rights, or jactitation of 1 marriage, and in all causes, suits, and matters matrimonial, except in respect of marriage licences, . . . .’’is transferred to the Divorce Court. The power thus derived by inference of making pro- vision for a wife in these suits is that of the Ecclesiastical Courts only, and by section 22 of the same Act it must be exercised “. . . .on principles and rules which, in the opinion of the 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, . . . .” According to the practice of the Ecclesiastical Courts, alimony peridente lite was payable from the return of the citation ( d ) . The question of alimony pendente lite was disposed of at the first stage of the proceedings (e) . The ceremony of marriage had first to be established (/), and this having been done, alimony followed as a matter of course, except where the wife had a sufficient provision of her own ( g ) . ( d ) Bain v. Bain (1824), 2 Add. 253; Hamerton v. Hamer- ton, (1827), 1 Hagg. 23. ( e ) Brisco v. Brisco (1816), 2 Hagg. Con. C. 199. GO Smyth v. Smyth (1824), 2 Add. 254. (y) Miles v. Chilton (Jalsely ALIMONY AND MAINTENANCE. 151 The nature of the suit did not affect the wife’s right to alimony 'pendente lite. She was as much entitled to it in suits of 1 nullity as in other suits (h ) . In setting out particulars of the husband’s income, the wife was allowed to plead any reversionary interests he might he possessed of, but not a mere expectancy (i). The husband’s answer to a petition for alimony was regularly taken to be strongly against him (1c ) . The Ecclesiastical Courts generally allotted as alimony pendente lite one-fifth of the husband’s income, but they were guided by circumstances, such as the rank and con- dition of the husband (7), and whether he had the children of the marriage to support (m), or whether the wife had a separate income (n) ; and the amount allotted was reduced when it was shown that the husband was no longer able to aliment at the same rate (o). The reduction of the husband’s income by unprofitable speculation was held to be no ground for a proportionate reduction of permanent alimony (p) . A f raudulent assign- ment by the husband of his property after the commence- ment of the suit was disregarded by the Court (q). A wife’s extravagance was taken into consideration by the Ecclesiastical Courts (r), and they allowed the husband to deduct from her alimony pendente lite any sums paid by Alimony pendente lite. Nature of suit. Particulars of husband’s income. Husband’s answer. Amount allowed. Liable to reduction in certain cases. In what cases liable to reduction. calling herself Miles') (1849), 1 Robert. 700. See two Irish cases, Butler v. Butler (1842), Milw. Ir. Ecc. Rep. 629; Finlay v. Finlay, lb. 575, where the wife’s original station in life was con- sidered in allotting alimony. ( h ) Miles v. Chilton ( falsely calling herself Miles) (1849), 1 Rob. 700; Bird ( alias Bell) v. Bird (1753), 1 Lee, 209. (i) Stone v. Stone (1843), 3 Curt. 341. (k) Robinson v. Robinson (1728), 2 Lee, 593. ( l ) Hawkes v. Hawkes (1828), 1 Hagg. 526. (m) Harris v. Harris (1828), 1 Hagg. 353. (n) Smith v. Smith (1813), 2 Phill. 152. (o) Cox v. Cox (1826), 3 Add. 276. (p) Neil v. Neil (1832), 4 Hagg. 273. (#) Brown v. Brown (1828), 2 Hagg. 5. ( r ) Brisco v. Brisco (1816), 2 Hagg. C. C. 201. 152 ALIMONY AND MAINTENANCE. Alimony pendente lite. Circumstances of case con- sidered. Arrears beyond one year not enforced without special cir- cumstances. When payment commenced. Appeal inter- posed. Pendente lite , practice since 1857. him on account of her debts (s ) . He might also deduct income tax (t), but he was not allowed to deduct premiums payable on a policy of life insurance (is ) . The nature of the complaint was sometimes taken into consideration (x) . The Ecclesiastical Courts allotted alimony for the main- tenance of the wife from year to year; therefore they would not enforce arrears beyond one year (y), except under special circumstances ( z ) . There was a material distinction between permanent alimony and alimony pendente lite , the former being always larger ( a ) . The rule of the Court was to decree permanent alimony from the date of the sentence (b), though this was not an invariable rule (c ) . And where an appeal was interposed, the alimony still continued (d ) . Alimony pendente lite now ceases upon a verdict finding the wife guilty of adultery, unless otherwise ordered by the Court (e). (s') Ilamerton v. Hamerton (1827), 1 Hagg. 23; Harris v. Harris, lb. 253. (t) Pemberton v. Pemberton (1842), 2 No. of Cas. 17. (u) Harris v. Harris (see pre- vious page). (; x ) Pees v. Pees (1821), 3 Phill. 389. (y) Wilson v. Wilson (1830), 3 Hagg. 329 (notis). (z) Pobinson v. Pobinson (1728), 2 Lee, 593. (a) Kempe v. Kempe (1828), 1 Hagg. 532. As to deductions allowed to husband in estimating permanent alimony, see West- meath v. Westmeath (1834), 3 Knapp, P. C. C. 42; and as to permanent alimony where decree of nullity pronounced on ground of bigamy, see Bird ( alias Bell ) v. Bird (1753), 1 Lee, 621. (5) CooJce v. Cooke (1812), 2 Phill. 41; Durant v. Durant (1825), 1 Hagg. 528. (c) Taylor v. Taylor (Arches Court, May 14th, 1796), cited in Cooke v. Cooke, supra. (d) Loveden v. Loveden (1810), 1 Phill. 208. See also Brisco v. Brisco (1820), 3 Phill. 206; Frankfort v. Frankfort (1844), 3 No. of Cas. 432. (e) Dunn v. Dunn (1888), 13 P. D. 91; 57 L. J. P. 58; 59 L. T. 385. (Wells v. Wells and Hudson (1864), 33 L. J. P. 151; 3 S. & T. 542; 10 L. T. 696, dis- cussed.) ALIMONY AND MAINTENANCE. 153 The Court refused to make any order for alimony pen- dente lite after decree nisi in a case where the wife was found guilty of adultery, and there had been no previous application (/) . The fact that there is a plea to the jurisdiction of the Court does not affect the power of the Court to allot alimony pendente lite (g ) . Alimony pendente lite is payable from the date of the service of the citation (ft ) . Where the respondent cohabited with the co-respondent for some time after the commencement of proceedings, the Court ordered that the alimony should run from the date at which such cohabitation ceased (i ) . Where a wife petitioner was found guilty of adultery on the intervention of the Queen’s Proctor, the Court held that she was entitled to payment of the arrears of alimony up to the date when she was so found guilty (1c ) . A decree nisi was rescinded and the petition dis- missed, and the wife appealed. In the meantime, the husband had ceased to pay alimony. The Court refused to enforce the arrears against the husband, but renewed the order for alimony until further notice (Z). A wife’s conviction for felony does not disentitle her to an order for alimony pendente lite (m); but see Leslie v. Leslie (n), where it was held that permanent alimony was not payable so long as the wife remained in prison. (/) Noblett v. Noblett and Kershaw (1869), L. R., 1 P. & D. 651; 20 L. T. 716. See also, as to the effect of unreasonable delay, Twistleton v. Twistleton and Kelly (1872), L. R., 2 P. & D. 339; 26 L. T. 265. (< 7 ) Ronalds v. Ronalds (1875), L. R., 3 P. & D. 259. (A) Nicholson v. Nicholson and Ratclife (1862), 31 L. J. P. 165. (i) Holt v. Holt and Davis (1868), L. R., 1 P. & D. 610; 38 L. J. P. 33; 16 L. T. 662. (A) Whitmore v. Whitmore (1866), L. R., 1 P. & D. 96; 35 L. J. P. 39; 13 L. T. 723. (l) Butler v. Butler and Burnham (1889), 15 P. D. 13; 59 L. J. P. 11; 62 L. T. 123. (m) Kelly v. Kelly (1863), 4 S. & T. 227; 32 L, J. P. 181. (n) (1908) P. 99; 77 L. J. P. 23; 98 L. T. 62; (1911) P. 203. Alimony pendente lite. Wife found guilty of adultery. Unreasonable delay . Where plea to the juris- diction. When payment commences. Respondent and co- respondent cohabiting. Wife committing adultery whilst suit pending. Appeal ; arrears. Wife convicted of felony. 154 ALIMONY AND MAINTENANCE. Alimony pendente Lite. Alimony payable until decree absolute. Order for alimony after decree nisi. 1899. Marriage clearly bigamous. Application for small sum pending hear- ing of petition for alimony. Husband having no means. Average earnings, husband out of employ- ment. Voluntary allowance to husband. In a suit of nullity, alimony continues payable after the dectee nisi until the decree is made absolute (o) ; and the Court has jurisdiction to make an order for alimony at any time before decree absolute (p ) . In a case where the marriage was clearly bigamous, the Court relieved the petitioner from payment of alimony pendente lite as soon as it had pronounced a decree nisi (q). The Court refused to entertain an application by a wife petitioner for a small sum of money, pending the hearing of her petition for alimony, on the ground that she was destitute. Where it appears that the husband has no means, or very small means, the Court will refuse to allot alimony pendente lite (s) . But alimony is sometimes allotted on the average annual earnings of a husband although at the moment he may be temporarily out of employment (t) . In the allotment of alimony, a voluntary annual allow- ance made to the husband forms no part of his facul- (o) S. (jalsely called B.) v. B. (1884), 9 P. D. 80; 53 L. J. P. 63. ( p ) Foden v. Foden, (1894) P. 307; 63 L. J. P. 163; 71 L. T. 279; and for a case where ali- mony refused when marriage plainly null and void on face of petition and answer, see Black- more v. Mills (Jalsely called Blackmore (1868), 18 L. T. 586. (q) Childers v. Childers (< other- wise Burjord) (1899), 68 L. J. P. 90. See also Bateman v. Bate- man (othertvise Harrison ) (1898), 78 L. T. 472. (s') Gaynor v. Gaynor (1862), 31 L. J. P. 144; Capstick v. Cap- stick , Furness and Winder (1864), 33 L. J. P. 105; Coombs v. Coombs (1866), L. R., 1 P. & D. 218; 14 L. T. 294; Beavan v. Beavan (1862), 2 S. & T. 652; 31 L. J. P. 166; 7 L. T. 435; Brown v. Brown and Simpson (1863), 3 S. & T. 217; 32 L. J. P. 144; 9 L. T. 118; Fletcher v. Fletcher (1862), 2 S. & T. 434; 31 L. J. P. 82; 6 L. T. 134. See also Ward v. Ward (1859), 1 S. & T. 484; 29 L. J. P. 17. ( t ) Thompson v. Thompson and Johnson (1867), L. R., 1 P. & D. 553; 37 L. J. P. 33; 18 L. T. 212. ALIMONY AND MAINTENANCE. 155 ties ( u ), though alimony is sometimes given to a wife out of income to which the husband has no strict legal right (x), as in a case where the husband was in receipt of an allowance so long as he should remain out of the country ( y ) . But all the valuable property of the hus- band will be taken into account, although he derives no income from it at the moment (z ) . The amount of alimony pendente lite allotted is now invariably one-fifth of the joint income of the husband and wife, except under peculiar circumstances, as, for example, where the income of the husband is so great as to make one-fifth an utterly unnecessary amount ( a ) . The circumstance that the husband has to maintain several children, the iss{ne of a former marriage , is no ground for allotting less than one-fifth of the joint in- come (b). A husband is liable for necessaries supplied to- his wife pending the suit, till a decree for alimony is made, but only to a reasonable amount. He may deduct from income derived from real property the expense of ordinary current repairs, but not of extraordinary and permanent improvements (c) . The institution of vexatious suits by the wife against the husband is a ground for allotting alimony pendente (u) Haviland v. Haviland (1863), 3 S. & T. 114; 32 L. J. P. 67; 7 L. T. 757. See also Moss v. Moss and Bush (1867), 15 W. E. 532. ( x ) Clinton v. Clinton (1866), L. E., 1 P. & D. 215; 14 L. T. 257. (y) Bonsor v. Bonsor, (1897) P. 77; 66 L. J. P. 85; 76 L. T. 168. ( 2 ) Crumpton v. Crampton and Armstrong (1863), 32 L. J. P. 142; Wilson v. Wilson (1872), 26 L. T. 108. (a) See Edwards v. Edwards (1868), 17 L. T. 584. (, b ) Hill v. Hill (1864), 33 L. J. P. 104. See also Grafton y. Grafton (1872), 27 L. T. 768. (c) Hayward v. Hayward (1858), 1 S. & T. 85; 28 L. J. P. 9; and see further as to hus- band, Hooper v. Hooper (1863), 29 L. J. P. 59; 3 S. & T. 251; Avila v. Avila (1862), 31 L. J. P. 176; Keegan v. Smith (1826), 8 D. & E. 118; 5 B. & C. 375. Alimony pendente lite. All valuable property taken into account. Eule as to rate of alimony pendente lite. Supporting the children. Husband liable for reasonable expenses of wife until decree for alimony made. Vexatious suits by wife. 156 ALIMONY AND MAINTENANCE. Alimony pendente life. Wife’s earnings. Husband and wife living apart. Wife’s power of earning money. Wife’s means of support. Charge of prostitution against wife. Deed of separation. lite at a lower rate (d) . And where the hearing of a suit by the wife for judicial separation was postponed at the wife’s instance, the Court directed the payment of alimony pendente lite to be suspended from the date of the postponement until the hearing (e). In allotting alimony pendente lite the wife’s earnings and power of maintaining herself must be taken into consideration (/), especially where the parties are very, poor (fir). Where the husband and wife have been living apart for many years, and the wife has been supporting herself, and is still able to do so, alimony pendente lite will not be allotted, except under special circumstances (h) . Where the wife has sufficient means of support inde- pendent of the husband, even although they be derived from the co-respondent, she will not be entitled to an allotment of alimony (i ) . The Court refused to rescind an order for alimony pendente lite on a sworn allegation that the wife was a prostitute; the wife, in her affidavit, denying the truth of the allegation (Tc ) . Where a husband had, under a deed of separation, paid his wife a certain allowance until he obtained evidence of her adultery, the Court ordered alimony pendente lite at the same rate (l). (d) Hahewill v. Ilakewill (1860), 30 L, J. P. 254. (e) Rogers v. Rogers (1865), 34 L. J. P. 87. (/) Goodheim v. Goodheim and Franhinson (1861), 30 L,. J. P. 162; 2 S. & T. 250; 4 L. T. 449. (g) Nicholls v. Nicholls (1861), 30 L. J. P. 163 (n.). (A) Thompson v. Thompson and Johnson (1867), L. R., 1 P. & D. 554; 37 L. J. P. 17. (i) Madan v. Madan and Re Thoren (1868), 37 L. J. P. 10; 18 L. T. 337; Holt v. Holt and Ravis (1868), L. R., 1 P. & D. 610; Raton v. Raton and Campbell (1870), L. R., 2 P. & D. 51; 21 L. T. 733. (7c) Patch v. Patch (1869), 38 L. J. P. 27; 19 L. T. 662. (7) Weber v. Weber and Pyne (1858), 1 S. & T. 219. See also Powell v. Powell and Jones (1874), L. R., 3 P. & D. 186; 43 L. J. P. 9; 29 L. T. 466. ALIMONY AND MAINTENANCE. 157 And where, by a separation deed, a husband covenanted to make an allowance to the wife, determinable upon her molesting him, and subsequently withdrew it in conse- quence of her molestation, whereupon she commenced a suit for judicial separation, the Court of Appeal held that she was entitled to alimony at the same rate (m) . By obtaining a protection order the wife does not deprive herself of her right to alimony pendente life in a subsequent suit (■»). Generally, payments made to a wife, or on account of her debts, or otherwise to her benefit since the service of the citation, are allowed to the husband as part payment of the alimony allotted (a) . If a husband has contracted to pay off a debt by in- stalments, they will be allowed for in estimating his income (p) . The Co,urt has power to order alimony pendente lite , notwithstanding a decree nisi has been made for dissolu- tion of marriage (q) . Alimony is payable to the wife pending an appeal, unless it shall appear to the Court that such appeal is frivolo.us and vexatious, or that she has been guilty of laches (r) . ( m ) Wood v. Wood (1888), 57 L. J., Ch. 1; lb. P. 31; 57 L. T. 746. This case was an appeal from a decision of Kekewich, J., sitting- as vacation judge. This probably will account for its being reported in the Law Journal in the Chancery as well as in the Probate, Divorce and Admiralty Reports. The case, however, be- longs exclusively to the Probate Division. (n) Halcewill v. Rakewill (1860), 30 L. J. P. 254. See post, Chap. X. (o) Crampton v. Crampton and Armstrong (1863), 32 L. J. P. 142. ( p ) Patterson v. Patterson , Curtis and Lore (1863), 33 L. J. P. 36; but see as to premiums on policies of life insurance, Forster v. Forster and Thomas (1862), 2 S, & T. 553; 31 L. J. P. 184; 6 L. T. 693. (?) Fllis v. Ellis (1883), 8 P. D. 188; 52 L. J. P. 99; 49 L. T. 223; Nicholson v. Nichol- son (1863), 32 L. J. P. 127; 9 L. T. 118. (r) Jones v. Jones (1872), L. R., 2 P. & D. 333; 41 L. J. P. 53; 4 S. & T. 144; 26 L. T. 106. Alimony pendente lite. Agreement not to molest in separation deed, sub- sequent suit for judicial separation. Protection order. Payments made for wife since citation. Instalments of a debt. Power to order alimony after a decree nisi. During appeal. 158 ALIMONY AND MAINTENANCE. Alimony pendente lite. Application to reduce amount. Arrears. Order XIV. Bankruptcy. Purely personal allowance. Permanent ; practice as to, since 1857. Powers of Court. Whore a husband applies to reduce the amount of alimony pendente lite on the ground that his income has become reduced since the date of the order, he must explain such reduction (s) . A claim for arrears of alimony pendente lite is not a claim for “a debt or liquidated demand in money” within the meaning of Order III. Rule 6, so as to entitle the plaintiff to judgment under Order XIV. Rule 1 ( t ). Arrears of alimony which have accrued due after the date of a receiving order made against the husband and bef ore proof are not provable in bankruptcy (u ) ; but, as such arrears constitute a debt enforceable under section 5 of the Debtors Act, 1869, they can be enforced by a com- mittal order on proof of means ( x ) . It was decided by the Court of Appeal, in 1896, that sums of money ordered, under section 1 of the Matri- monial Causes Act, 1866 (29 & 30 Viet. c. 32), to be paid by a husband for the maintenance of his divorced wife, are a purely personal allowance, and so long as the order subsists can neither be alienated nor released {y ) . The power possessed by the Probate, Divorce and Admiralty Division of making orders for the permanent alimony or maintenance of a wife is threefold, viz. : (1) the power to order a gross or annual sum of money to be secured to the wife for a term not exceeding her own life, (s) Shirley v. War dr op (falsely called Shirley) (1858), 1 S. & T. 317; 33 L. T., 0. S. 198. (Z) Bailey v. Bailey (1884), 13 Q. B. D. 855; 53 L, J., Q. B. D. 583. (u) Hawkins, In re, Hawkins, Ex parte, (1894) 1 Q. B. 25; 69 L. T. 769. See also Otway, In re , Otway, Ex parte (1888), 58 L. T. 885; Linton, In re , Linton, Ex parte (1885), 15 Q. B. D. 239; 54 L. J., Q. B. 529; 52 L. T. 782; Prescott v. Prescott (1868), 20 L. T. 331. (x) Kerr v. Kerr, (1897) 2 Q. B. 439; 66 L. J., Q. B. 838; 77 L. T. 29; and see, as to a bankrupt who obtained an order of discharge under one of the older Bankruptcy Acts, Dickens y. Dickens , 2 S. & T. 645; 31 L. J. P. 183; 7 L. T. 395. (y) Watkins v. Watkins, (1896) P. 222; 65 L. J. P. 75; 101 L. T. 158. ALIMONY AND MAINTENANCE. 159 conferred upon it by section 32 of the Matrimonial Causes Act, 1857; (2) the power of ordering the husband to make monthly or weekly payments to the wife in cases of dis- solution, conferred upon it by section 1 of the Matrimonial Causes Act, 1866; (3) the power it possesses of ordering provision to be made for a wife in all matrimonial causes other than suits for dissolution by virtue of the jurisdic- tion of the Ecclesiastical Courts transferred to it by section 6 of the Matrimonial Causes Act, 1857. It must be borne in mind that, as in the case of alimony pendente lite , the Court in making a permanent provision for the wife is bound by the practice of the Ecclesiastical Courts in all matrimonial causes other than suits for dis- solution of marriage, except so far as this rule may be modified with respect to suits for restitution of conjugal rights by the provisions of the Matrimonial Causes Act, 1884, as to which see ante, Chap. IV. In suits for restitution the Court will not, at the hear- ing, consider any question as to what allowance the respondent should be ordered to pay his wife in the event of a decree being pro-no upced and of his refusing to comply therewith (z ) . It was for a long time supposed that the Court had no power to make an order for the permanent maintenance of a wife after a decree absolute had been pronounced. The contrary was, however, decided by Sir James Hannen in 1878 (a). Under the Matrimonial Causes Act, 1857, s. 32 (20 & 21 Viet. c. 85), the Court has no power to order that a sum of money standing in the names of the husband and wife in a savings bank should be paid to the wife, but jt can order the husband to secure the same to the wife (b). Alimony and maintenance. Mat. C. Act, 1857, s. 32. Ibid. 1866, s. 1. Ibid. 1857, s. 6. Practice of Ecclesiastical Courts, when binding. Refusal to consider question of amount before decree. Maintenance order may be made after decree absolute. Money in savings bank. ( z ) Mason v. Mason (1889), 61 L. T. 304. (a) Bradley v. Bradley (1878), Z P. D. 47; 47 L. J. P. 53; 39 L. T. 203. ( b ) Robotham v. Robotham (1858), 1 S. & T. 190; 27 L. J. P. 61. 160 ALIMONY AND MAINTENANCE. Alimony and maintenance. Limit of amount after a decree of judicial separation. Court will not bind husband's property irrevocably. Moiety of income awarded. One- fourth plus pro- visions for children awarded. Reduction of order. Being bound by the practice of the Ecclesiastical Courts, the Court cannot in a suit for judicial separation allot more than one moiety of the joint income to the wife by way of permanent alimony, although she may have brought more than one moiety of the property into settlement (c) ; neither can it make such an order as would have the effect of charging the husband’s property with payment of permanent alimony, whatever alteration might take place in his circumstances at any future time (d ) . Where a wife’s conduct before and after marriage has been reprehensible (although she was not guilty of any matrimonial offence), if she has no means of support, the husband is bound to allow her a sum which will enable her to live a respectable life. She is not entitled, how- ever, to any particular portion of his income merely because she has proved him guilty of a matrimonial off ence (e) . Where the only income of the husband was 60?. a year, and he had turned his wife out, and his mistress was living with him, the Court awarded a moiety of his income as permanent alimony (/) . Where the wife had the custody of three children, and the husband’s income was estimated at 400?. a year, the Court awarded her 160?. as permanent alimony, 100?. for herself and 20?. for each of the children (g). If his income fails, the husband can apply for a reduc- tion of alimony (h ) . (c) Haigh v. Haigh (1869), L. R., 1 P. & D. 709; 38 L. J. P. 37; 20 L. T. 281. ( d ) Hyde v. Hyde (1865), 4 S. & T. 80; 34 L. J. P. 63; 12 L. T. 235. See Carter v. Carter , (1896) P. 35; 65 L. J. P. 40, where the above case is cited in the judgment of Gorell Barnes, J . (e) Leslie v. Leslie, (1908) P. 99; 77 L, J. P. 23; 98 L. T. 62; (1911) P. 203. (/) Avila v. Avila (1862), 31 L. J. P. 176. (g) Whieldon v. Whieldon (1861), 2 S. & T. 388; 30 L. J. P. 174; 5 L. T. 138. ( h ) Moore v. Moore (1864), 3 S. & T. 606; 34 L. J. P. 146; 11 L. T. 459. ALIMONY AND MAINTENANCE. 161 It has been decided by the Court of Appeal that the Court has jurisdiction to order permanent alimony to. be paid to a guilty wife in suits for judicial separation (?). The deductions allowed in estimating the amount of the husband’s income for the purposes of permanent alimony or maintenance are the same as are allowed in estimating it for alimony pendente lite. The Court will, as a rule, in the absence of special cir- cumstances, order the husband to secure about one-third of the joint income to a wife whose marriage has been dissolved on her own petition as permanent mainten- ance (k ) . Where the husband’s income was 150 1. a year, the Court ordered him to pay the wife 11. per week, together with 30?. a year for the maintenance and education of two children who were in her custody (?) . But the rule that one-third of the joint income of the husband and wife should be allotted as permanent main- tenance does not apply where such income is very large. In such a case a fair test is what would be considered an adequate jointure for the wife (as widow) in case of her husband’s death (m) . In Morris v. Morris (n) the Court ordered the husband to secure to his wife the payment of the sum of 2,000?. absolutely; and this case was followed in 1898 (o). But in 1903, Sir Francis Jeune — after considering and (i) Goodden v. Goodden, (1892) P. 1; 65 L. T. 542. See also Z. v. Z., (1911) P. 203; 104 L. T. R. 462, for general principles upon which alimony is to be granted. (k) Sidney v. Sidney (1865), 4 S. & T. 178; 34 L. J. P. 122; 12 L. T. 826. See also 'Fisher v. Fisher (1861), 2 S. & T. 410; 31 L. J. P. 1; 5 L. T. 364. ( l ) Prescott v. Prescott (1868), D.M.C. 18 L. T. 35. (m) Sykes v. Sykes, (1897) P. 306; 66 L. J. P. 162; 77 L. T. 150; Kettlewell v. Kettlewell, (1898) P. 138; 67 L. J. P. 16; 77 L. T. 631. See also Short- house v. Shorthouse (1898), 78 L. T. 687; affirmed, 79 L. T. 366. (n) (1861), 31 L. J. P. 33. (o) Stanley v. Stanley, (1898) P. 227; 68 L. J. P. 7; 79 L. T. 104. Alimony and maintenance. Permanent, guilty wife. Deductions allowable. Maintenance, wife peti- tioner, amount, general rule, one-third. Ibid. Where hus- band’s income large. Payment of lump sum ordered. 1898. No power to order gross II 162 ALIMONY AND MAINTENANCE. Alimony and maintenance, permanent. sum to be paid to wife absolutely. Order by consent. Partnership business, basis of calcu- lation of husband’s income out of. Arrears of alimony. Promise to release. Wife entitled to separate commenting on the last two cases — held, that the Court has no power under section 32 of the Matrimonial Causes Act, 1857, either to order a lump sum to be paid over to a wife absolutely for her permanent maintenance, or to ordeil such lump sum to be secured to her or to the issue of the marriage by settlement, for a longer period than her own life (p) . But the Court may make any order it please with the consent of all parties, as where the respondent having been ordered to secure to the wife 721 l. per annum during their joint lives, it varied the order on the application of the wife, the respondent not opposing, by ordering him to f>ay 6,000L direct to her (g). The proper basis of calculation of the sum to be secured for a wife’s maintenance where the husband is in business is the amount he can draw out of his business without his partner’s consent, and not his share of profits (r). Where a wife has obtained an order for an annual sum to be secured to her, she can release or alienate it (s) ; but a promise to release arrears and future payments of alimony is not supported by a consideration of a sum less than the arrears ( t ). Where the husband’s yearly income was 300Z., and the (j>) Twenty man v. Twenty man , (1903) P. 82; 72 L, J. P. 36; 88 L. T. 571 ; and see further, as to amounts in different cases, Wil- cocks v. Wilcoeks (1859), 32 L. J. P. 205; Todd v. Todd (1873), 42 L. J. P. 62; 29 L. T. 252; Warren v. Warren (1890), 63 L. T. 264; Corbett v. Corbett (1888), 14 P. D. 7; 58 L. J. P. 17; 60 L. T. 74; George v. George (1869), 38 L. J. P. 34; 20 L. T. 232. (q) Kirk y. Kirk, (1902) P. 145; 71 L. J. P. 78; 87 L. T. 148. (r) Hanbury v. Hanbury, (1894) P. 315; 63 L. J. P. 105; 70 L. T. 569; (1895) A. C. 417; 72 L. T. 480. (s') Maclurcan v. Maclurcan (1897), 77 L. T. 474 (C. A.). ( t ) TJ nderwood v. Underwood, (1894) P. 204; 63 L. J. P. 109; 70 L. T. 390. See also Be Lossy v. Be Lossy (1890), 15 P. D. 115; 62 L. T. 704; but see, as to sums ordered under Mat. O. Act, 1866, s. 1, Watkins v. Watkins, (1896) P. 222; 65 L. J. P. 75; 74 L. T. 636. ALIMONY AND MAINTENANCE. 163 wife had an income of 12 ?., and was entitled in reversion on the death of a person aged eighty to an income of 70?., the Court declined to order permanent maintenance (u) . When the Court makes an order for permanent main- tenance after a marriage has been dissolved on the wife’s petition, it is not now usual to insert the clause dum sola et casta vixerit into such order (x) ; and when this clause is inserted, this is usually done not in the order, but in the deed of security (y) ; and it lias been held by the Court of Appeal that the dum sola et casta clause ought to be inserted or omitted upon the consideration of the facts of each case ( z ) . Where upon a decree absolute being obtained by a wife an order is made for a fixed sum for her maintenance and there is no dum sola et casta clause, the Court cannot vary the order on the application of the husband alleging that the wife has been guilty of adultery. The dum sola et casta clause must be inserted in the order; it will not be inferred {a). Alimony and maintenance, permanent. estate, hus- band’s income small. Dum sola et casta clause. Discretion of Court. The grounds for variation or modification are set out in section 1 of the Matrimonial Causes Act, 1907 (7 Edw. 7, c. 12), and there is no power given to vary ( u ) Rawlins v. Rawlins (1865), 34 L. J. P. 147; 4 S. & T. 158; 13 L. T. 212. (x) Harrison v. Harrison (1886), 12 P. D. 130; 56 L. J. P. 76; 57 L. T. 119. See also Gladstone v. Gladstone (1876), 1 P. D. 444; 45 L. J. P. 82; 35 L. T. 380; Bradley v. Bradley (1882), 7 P. D. 237; 51 L. J. P. 87; 47 L. T. 355; Lister v. Lister (1890), 15 P. D. 4; 62 L. T. 90. See as to the husband’s liability at common law under a covenant in a separation deed to pay an annuity to his wife after she has committed adultery, the dum casta clause not having been inserted in such deed, Fearon v. Aylesford (1884), 14 Q. B. D. 792; 54 L. J., Q. B. D. 33; 52 L. T. 954. (y) Medley v. Medley (1882), 7 P. D. 122; 51 L. J. P. 74. (z) Wood v. Wood, (1891) P. 272; 60 L. J. P. 66; 64 L. T. 586; Kettlewell v. Kettlewell, (1898) P. 138; 67 L. J. P. 16; 77 L. T. 631. (a) Collins v. Collins (1910), 103 L. T. R. 80. 11 ( 2 ) 164 ALIMONY AND MAINTENANCE. Alimony and maintenance, permanent. 1902. Compassion- ate allowance to guilty wife. Judicial separation on ground of wife’s cruelty 1904. Divorce granted to husband an order made upon such grounds as the alleged adultery on the part of the wife. After a decree of nullity, as well as after a decree of dissolution of marriage, the conduct of the parties is one of the material matters to be taken into consideration in dealing with any application for an allowance; and the discretion of Court in ordering or refusing an allowance must be exercised according to the circumstances of each particular case (b). In 1902, it was decided by the Court of Appeal, thaf the Court, under section 32 of the Matrimonial Causes Act, 1857, has an absolute discretion to order a husband to provide for a guilty wife, if it should be of opinion that the circumstancies of the case warrant it in so doing (c) . As a rule a judicial separation on the ground of the wife’s cruelty will not now be decreed, except on the con- dition that the husband makes some reasonable provision for her maintenance (d ) . Where a husband obtained a divorce from his wife on the ground of her adultery, she having previously obtained a decree of judicial separation from him on the ground of ( b ) Dunbar ( otherwise White') v. Dunbar, (1909) P. 90; 78 L. J. P. 35; 100 L. T. 380. () Wootton Isaacson v. Woot- ton Isaacson, (1902) P. 146; 71 L. J. P. 80; 87 L. T. 147. See Suart v. Suart ( otherwise Hodg- son), (1910) P. 246; 79 L. J. P. 86. ( q ) Allcard v. Walker, (1896) 2 Ch. 369; 65 L. J., Ch. 660; 74 L. T. 487. See also Blackett v. Blackett (1884), 51 L. T. 427. VARIATION OF SETTLEMENTS, 191 fund in trust for the person who, under the settlement, would have been entitled were the wife dead, the fund being in the Court of Chancery, the husband, as the person so next entitled, applied for an order for the payment of the income to him. The Court ordered the income to be paid to him pursuant to the order of the Divorce Court (r) . Where a vesting order was required to carry into effect an order for variation of settlements, the Court exercised jurisdiction under the Trustee Act, 1893, s. 35, and made a vesting order (s ) . See further on the subject of this chapter, Part II., “ Practice as to Variation of Settlements” (p. 480); see also “Costs,” post, Chap. XVI. (p. 228). ( r ) Pratt v. Jenner, Jenner , Ex parte (1866), L. R., 1 Ch. 493; 35 L. J., Ch. 682; 15 L. T. 183. See further as to variation of settlements, Johnson v. John- son (1861), 31 L. J. P. 29, where the guilty husband’s interest was extinguished; Bowden v. Bowden (1866), 15 W. R. 90, where a gross sum was applied for by an innocent wife; Thomas v. Thomas (1865), 13 L. T. 412, where the Court refused to order a guilty wife’s jewels to be delivered up ; Bacon v. Bacon and Bacon (1860), 2 S. & T. 86; 29 L. J. P. 125; 2 L. T. 438, where two-thirds of the guilty wife’s property was settled im- mediately on her children, and the remaining one-third on her death or remarriage; Pearce v. Pearce and French (1861), 30 L. J. P. 182, where the wife’s interest was extinguished; Call- well v. Callwell and Kennedy (1860), 3 S. & T. 259, where the husband had covenanted for an annuity to be paid to the wife in case of her surviving him, and the Court ordered it to be paid to the children; Harrison v. Harrison (1886), 12 P. D. 130; 56 L. J. P. 76; 57 L. T. 119, which was a petition for permanent maintenance and variation of settlements, in which it was held by Butt, J., that “ the Court in allotting permanent maintenance will not interfere with reversionary interests, except under special circumstances, as, for instance, where there are no other means of ensuring a provi- sion for the wife ” ; and Creagh v. Creagh (1896), 74 L, T. 430, where a child’s interest in a settlement was accelerated, in spite of the fact that it might thereby incur considerable sub- sequent loss. (s) Storer v. Storer (1894), 11 R. 618. Settlements. Vesting order under Trustee Act, 1893. 192 DECREE AND INTERVENTION. CHAPTER XII. DECREE AND INTERVENTION (d) . Mat. C. Act, 1860, s. 7. Mat. C. Act, 1866, s. 3. Time for making decree absolute. Intervention, collusion. material facts. By section 7 of the Matrimonial Causes Act, 1860 (23 & 24 Viet. c. 144), “ 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 throe months ” (extended to six calendar months by section 3 of the Matrimonial Causes Act, 1866 (29 & 30 Viet, c. 32), 11 unless the Court shall under the power now vested in it fix a shorter time”) (b), “from the pro- nouncing thereof, as the Court shall by general or special order from time to time direct; and during that period any person shall be at liberty, in such manner as the Court shall by general or special order in that behalf from time to time direct, to shM cause why the said decree should not be made absolute 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, ( a ) Since the accession of King Edward VII., the “Queen’s” Proctor has become the “ King’s ” Proctor, but the old title has been retained here, in the Acts of Parliament as a matter of course, and also wher- ever a case is cited that was heard during the lifetime of her late Majesty Queen Victoria. ( b ) For a case in which the Court has exercised this power, see Fitzgerald v. Fitzgerald (1874), L. R., 3 P. & D. 136; 43 L. J. P. 13; 31 L. T. 270. For cases in which it has refused to do so, see Shelton v. Shelton and Campbell (1869), 38 L. J. P. 34; 20 L. T. 232; Rippingall v. Rippingall and Lockhart (1882), 48 L. T. 126; and the legislature having extended to suits for nullity of marriage the provisions of the Mat. C. Act, 1860, s. 7, the judge will not exercise his discretion to shorten the period in cases of nullity of marriage except under very special circumstances: M. (Jalsely called B.') v. B. (1874), L. R., 3 P. & D. 200; 43 L. J. P. 42; 30 L. T. 345, 910. See also Rogers v. Rogers (1894), 6 R. 589. DECREE AND INTERVENTION. 193 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 require; and at any time during the progress of the came or before the decree is made absolute any person may give infor- mation 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 other- wise the said Proctor shall suspect that any parties to the suit are or have been acting in collusion for the purpose 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 wit- nesses to prove it; and it shall be lawful for the Court to order the costs of such counsel and witnesses, and other- wise, 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.” By section 1 of the Matrimonial Causes Act, 1873 (36 Viet. c. 31), the provisions of the above two sections are extended to suits for nullity. If a decree nisi be rescinded, it is rescinded for all purposes and any damages which may have been given against a co-respondent fall to the ground with it, though he may still have to pay the costs (c ) . An order for a new trial rescinds the decree nisi (d ) . (c) Hyman v. Hyman and Goldman (King’s Proctor show- ing cause), (1904) P. 403; 73 L. J. P. 106; 91 L. T. 361. See also Quartermaine v. Quarter- D.M.C. maine and Glenister, (1911) P. 180. ( d ) Worsley v. Worsley and Worsley (1904), 20 T. L. R. 171. Decree and intervention. Mat. C. Act, 1860, s. 7. Mat. C. Act, 1866, s. 3. Queen’s (now Kiug’s) Proctor. Mat. C. Act, 1860, s. 7, and Mat. C. Act, 1866, s. 3, extended to suits for nullity by Mat. C. Act, 1873, s. 1. Rescission of decree. Order for new trial ; effect on decree nisi. 13 194 DECREE AND INTERVENTION. Decree and intervention. Marriage still exists up to decree absolute. Collusive agreement as to suit and costs. Grounds for postponement of making decree absolute. Solicitor’s costs not paid. Judgment reserved ; The marriage still continues during the interval between decree nisi and decree absolute, and sexual connection by either of the parties with a third person is adultery, and a material fact of which the Court is bound to take notice (e). Where a husband declined to divorce his wife except on certain terms, which were agreed to by both her and the co-respondent, but he was nevertheless actuated by good motives, and his counsel frankly stated all the facts to the Court; the Court, having ordered all the papers to be sent to the Queen’s Proctor, subsequently, on his inter- vention, rescinded the decree nisi and dismissed the peti- tion on the ground of collusion; but at the same time intimated that, as there had been no concealment, the husband might file a fresh petition provided he made no agreement with the other side with respect to it (/) . After a verdict in favour of the petitioner, on a trial by jury, arising from an intervention, the Court postponed making the decree absolute until the time had expired for an application for a new trial (g ) . But the fact that the petitioner had not paid his solicitor’s taxed costs was held not sufficient to justify the Court in postponing making a decree absolute ( h ) . When judgment has been reserved the decree nisi , if pronounced, will not be antedated, but the Court may (e) Hulse v. Hulse and Taver- nor (1871), E. R., 2 P. & D. 259; 40 L. J. P. 51; 24 L. T. 847. This was not, however, the opinion of Sir Cresswell Cress- well: Lewis v. Ijewis (1861), 2 S. & T. 394; 30 L. J. P. 199; 4 L. T. 772. And see further as to decrees, Prole v. Soady (1868), L. R., 3 Ch. 220; Watton v. Walton and Oastler (1866), L. R., 1 P. & D. 227; 35 L. J. P. 95; 14 L. T. 742. (/) Churchward v. Church- ward and Holliday (Queen’s Proctor intervening), (1895) P. 7; 64 L. J. P. 18; 71 L. T. 782. (g') Bering v. Bering and Blakeley (Queen’s Proctor and Others intervening) (1868), L. R., 1 P. & D. 531; 19 L. T. 48. (Ji) Patterson v. Patterson and Graham (1870), L. R., 2 P. & D. 192; 40 L. J. P. 4; 23 L. T. 631. DECREE AND INTERVENTION. 195 allow the time for decree absolute to run from the date of the hearing (i ) . Where the Queen’s Proctor applied for a postponement on affidavits that he intended to intervene, but had not been yet able to take the directions of the Attorney- General, the Court refused to make a decree nisi absolute, although the six months had expired (Tc ) . The Court made a decree absolute, notwithstanding a suggestion, supported by affidavits, that the respondent and co-respondent were dead (Z). It was held by the Court of Appeal, where a peti- tioner had died after decree nisi and before decree abso- lute, that his legal personal representative could not revive the suit for the purpose of applying to make the decree absolute. (^). The Court will not make a decree absolute for dissolu- tion on the application of the respondent (n ) . But when a wife had allowed more than a year to elapse without moving to make absolute a decree nisi which she had obtained for a dissolution of her marriage, the Court, on respondent’s application, held that petition must be dismissed for want of prosecution, unless within a week petitioner applied to make decree absolute (o). And when a wife, having obtained a decree nisi for dissolution of her marriage, did not apply to make it absolute for six weeks after the six months had elapsed, the respondent then applied to have the petition dismissed. (0 Houghton v. Houghton, (1903) P. 150; 72 L. J. P. 31; 89 L. T. 76. ( k ) Hamilton v. Hamilton and Hiding (1875), 33 L. T. 462; Hdlmer v. Palmer (1865), 4 S. & T. 143; 34 L. J. P. 110. ( l ) Dering v. Dering and Blakeley (Queen’s Proctor and Others intervening) (1868), L. R., 1 P. & D. 531; 37 L. J. P. 52; 19 Lr. T. 48. ( m ) Stanhope v. Stanhope (1886), 11 P. D. 103; 55 L, J. P. 36; 54 L. T. 906. (n) Ousey v. Ousey and Atkin- son (1875), 1 P. D. 56; 45 L. J. P. 56; 33 L. T. 789. (o) Lewis v. Lewis, (1892) P. 212; 61 L. J. P. 95; 67 L. T. 358. 13 ( 2 ) Decree and intervention. date of decree. Postponement on application of Queen’s Proctor. Respondent and co- respondent both dying after decree nisi. Petitioner dead, attempt to revive suit. Decree absolute, application to make, by respondent. Petition dismissed where peti- tioner failed to apply to make decree absolute. 196 DECREE AND INTERVENTION. Decree and intervention. Intervention : nullity suit. 4 King’s Proctor, intervention by- Mat. C. Act, 1860, s. 7. “ Collusion ” means “ collusion' 17 in that suit only, not previous suit. This application was refused and adjourned for some six weeks in order to give the wife time to make up her mind, and at the end of that time at the wife’s request the Court rescinded the decree nisi and gave her instead a decree of j udicial separation (jp ) . There was no right of intervention in suits dor nullity previous to the passing of the Matrimonial Causes Act, 1873 (36 Viet. c. 31), s. 1, which has been already cited at the commencement of this chapter (q), but the extinct Courts used to allow third parties to be cited where they were interested in the validity of a marriage disputed in the suit (r) . Section 7 of the Matrimonial Causes Act, 1860, confers on the King’s Proctor the power to intervene in the case of collusion , hut in that alone, ; and except in such a case, if he takes any proceedings in a suit for divorce, he appears only as one of the public giving information to the Court ( s ) . The “ collusion ” referred to in section 30 of' the Matri- monial Causes Act, 1857, means collusion in the suit pending (f) . (j>) Parsons v. Parsons, (1907) P. 331. (q) See D. v. M. (1873), 28 L. T. 73. (r) Montague v. Montague (1824), 2 Add. 372 ; Chichester v. Donegal (1822), 1 Add. 5; and see M. v. M. ( otherwise A.) (1897), 76 L. T. 172, where the Court, in an undefended nullity suit, ordered information as to the facts of the case to be sent to the Queen’s Proctor. (s) Lautour v. Queen 7 s Proctor (1864), 33 L. J. P. 89; 10 H. L. C, 685; 10 L. T. 611. See also Masters v. Masters (Queen’s Proctor intervening) (1864), 34 L. J. P. 7 ; Hudson v. Hudson and Poole (1875), 1 P. D. 65; 45 L. J. P. 39; 33 L. T. 788; Boulton v. Boulton and Page (1861), 2 S. & T. 551; 31 L. J. P. 76; 6 L. T. 693; and as to intervention by one of the public, Bowen v. Bowen and Evans (Queen’s Proctor intervening) (1864), 3 S. & T. 530; 33 L. J. P. 129; Clements v. Clements and Thomas (Eames and Burroughs intervening) (1864), 33 L. J. P. 74; 3 S. & T. 394; 10 L. T. 352. ( t ) Butler v. Butler (Queen’s Proctor intervening), (1893) P. 185; 62 L. J. P. 105; 69 L. T. 54; 1 R. 521. DECREE AND INTERVENTION. 197 The King’s Proctor ought not to intervene before decree nisi , except in cases where he charges collusion (u ) . In the case of 1 Jackson v. Jackson (x), at the hearing it was admitted by the petitioner that she had committed adultery, but she asked the Court to exercise its dis- cretion. The judge, however, adjourned the hearing that the papers might be sent to the King’s Proctor. Upon motion by the King’s Proctor for directions, it was held that as the Court could not compel the Attorney-General to issue his fiat, the case would have to remain in the reserve list. If the King’s Proctor comes to the conclusion that a decree has been obtained contrary to the justice of the case, then it is his duty to intervene ( y ) . The fact that material facts have not been brought to the notice of the Court is a sufficient ground for inter- vention whether such facts have been intentionally or accidentally withheld ( 0 ) . The Court cannot beforehand limit the right of the King’s Proctor to lay material facts before it ( a ). If 11 material facts ” have been kept from the know- ledge of' the Court, but it appears on all the facts being knoivn that the petitioner is nevertheless entitled to a divorce, the Court will not refuse to make the decree absolute. The Court may even exercise its discretion and grant a decree although the petitioner may have been guilty of misconduct (6), or where the material fact that the (w) Hudson v. Hudson and Poole (1875), 1 P. D. at p. 168, per Hannen, P. (a) (1910) P. 230; 79 L. J. P. 59; 102 L. T. R. 862. (y) Crawford v. Crawford and Dilke (Queen’s Proctor in- tervening) (1886), 11 P. D. at p. 157, per Hannen, P. (z) Howarth v. Howarth (1884), 9 P. D. at p. 225, per Cotton, L. J. («) Gladstone v. Gladstone (1875), L. R., 3 P. & D. 263, per Hannen, P. (&) Pretty v. Pretty (King’s Proctor showing cause), (1911) P. 83; 104 L. T. 79. Decree and intervention. Time for intervention. Decree obtained contrary to justice of case. Material facts not brought to notice of Court. Material facts kept from knowledge of Court, peti- tioner entitled to divorce not- withstanding. 198 DECREE AND INTERVENTION. Decree and intervention. Agreement to suppress material facts amounting to collusion. Decree nisi alleged to have been granted on untrue charge. How art h v. Howarth. Mat. C. Act, 1860, s. 7. Intervention by any person. husband had deserted the wife before her adultery was not disclosed to the Court, the Court still exercised its discretion and allowed the decree to he made absolute upon terms (c) . So where a petition contained two charges of adultery and alleged that neither of them had been condoned, and the Queen’s Proctor intervened and proved condonation of one adultery, but not of the other, the Court made a decree absolute on the ground of the uncondoned adultery, not- withstanding the suppression of the material fact of con- donation of the other adultery (d). But if a petition is prosecuted in collusion — and agreement between parties to a divorce suit to suppress material and pertinent facts amounts to collusion — the Court will not make the decree absolute, even though such facts might not have been sufficient to support a countercharge (e). The King’s Proctor may intervene to show cause why a decree should not be made absolute on the ground that the charge of adultery on which it was granted was not true, and he is at liberty to adduce evidence of fresh material facts (/). In Haworth v. Howarth ($'), it was held by the Court of Appeal: — 1. That the Act 23 & 24 Viet. c. 144, s. 7, authorizes intervention by any person where material facts have not been brought before the Court, whether by intention or through accident. (c) Freeman v. Freeman and Freeman (1911), 105 L. T. R. 383. ( d ) Alexandre v. Alexandre (Queen’s Proctor intervening) (1870), L. R., 2 P. & D. 164; 39 L. J. P. 84; 23 L. T. 268. (e) Butler v. Butler; Butler v. Butler and Burnham (Queen’s Proctor intervening) (1890), 15 P. D. 66; 59 L. J. P. 25; 62 L. T. 344. See also Churchward v. Churchward and Holliday (Queen’s Proctor intervening), (1895) P. 7; 64 L. J. P. 18; 71 L. T. 782. (/) Crawford v. Crawford and Dilice (Queen’s Proctor interven- ing) (1886), 11 P. D. 150; 55 L. J. P. 42; 55 L. T. 304. (y) (1884), 9 P. D. 218; 51 L. T. 872. DECREE AND INTERVENTION. 199 2. That it is doubtful whether where the petitioner, after the decree nisi , is guilty of conduct disentitling him or her to have the decree made absolute, the right to intervene is confined to the Queen’s Proctor (?). 3. That where a respondent is not entitled to a new trial, intervention on the ground of fresh evidence as to acts prior to the decree nisi will not be allowed if the intervener is merely acting on behalf' of, and in collusion with, the respondent; but the fact that he is a near relative of the respondent is no ground for rejecting the intervention . A respondent against whom a decree nisi for dissolu- tion of marriage has been pronounced cannot personally intervene to prevent the decree being made absolute. His or her only remedies are, either to procure the intervention of the King’s Proctor or to move for a new trial (h ) . Neither will the Court, in a nullity suit on the ground of impotence, make a decree absolute on the application of the respondent (i ) . Where, in opposition to a decree nisi, an appearance was entered on behalf of an individual who — it subsequently appeared — had not authorized the intervention, and an appearance was then entered on behalf of another inter- vener, the Court refused to take notice of' the intervention of such other intervener ( k ) . It has been held that the Court will not allow a peti- tioner to take his petition off the file ( 1 ), or to alter a prayer (A) Stoate v. Stoate (1861), 30 L. J. P. 173; 2 S. & T. 384; 5 L. T. 138. See also Pattenden v. Pattenden and Herzfield (1868), 19 L. T. 612. (i) Halfen ( otherwise Bod- dington) v. Boddington (1881), 6 P. D. 13; 50 L. J. P. 61; 44 L. T. 252. ( 'Jc ) Clements v. Clements and Thomas (Eames and Burroughs intervening) (1864), 3 S. & T. 394; 33 L. J. P. 74; 10 L. T. 352. See also Forster v. Forster and Berridge (Graham interven- ing) (1863), 3 S. & T. 151; 32 L. J. P. 206; 9 L. T. 148. (J) Gray v. Gray (Queen’s Proctor intervening) (1861), 2 S. & T. 266; 30 L. J. P. 119; 4 L. T. 478. Decree and intervention. Misconduct after decree nisi. Intervention on behalf of respondent. Intervention by respon- dent. Nullity suit. Unauthorized intervention. Changing prayer of petition to 200 DECREE AND INTERVENTION. Decree and intervention. oust King’s Proctor. Admission by- petitioner. Court sending- papers to Queen’s Proctor. Mat. C. Act, 1860, s. 6. Court of Appeal. Judicature Act, 1873, s. 19. Intervention in custody of children. for dissolution into a prayer for judicial separation (m), for the purpose of ousting the Kings Proctor. When the King’s Proctor alleges matter which would be ground for reversing a decree nisi, and such allegations are admitted by the petitioner, the Court will act on such admission without requiring further proof (w). By section 5 of the Matrimonial Causes Act, 1860 (23 & 24 Viet. c. 144), “ In every case of a petition for a dis- solution of marriage it shall be lawful for the Court, if it shall see fit, to direct all necessary papers in the matter to be sent to Her Majesty’s Proctor, who shall, under the directions of the Attorney-General, instruct counsel to argue before the Court any question in relation to such matter, and which the Court may deem it necessary or expedient to have fully argued; . . .” In a ease where a husband had been long absent in New Zealand, a decree nisi was pronounced on his petition, but the papers were ordered to be laid before the Queen’s Proctor for inquiry into the facts of the clase (o) . And, by virtue of section 19 of the Judicature Act, 1873, the same power to direct the papers to be sent to the Queen’s Proctor is also vested in the Court of Appeal (p) . Another kind of intervention arises under the Matri- monial Causes Act, 1857, s. 35, and the Matrimonial (m) Drummond v. Drummond (Queen’s Proctor intervening) (1861), 2 S. & T. 269; 30 L. J. P. 177; 4 L. T. 416. ( n ) Boulton v. Boulton and Page (1861), 31 L. J. P. 115. See also Pollack v. Pollack , Deane and Macnamara (1863), 4 S. & T. 266; 34 L. J. P. 49; Sheldon v. Sheldon (Queen’s Proctor in- tervening) (1865), 4 S. & T. 75; 34 L. J. P. 80. (o) Stevens v. Stevens and Field (1890), 61 L. T. 844. See also Boulton v. Boulton and Page (1861), 2 S. & T. 405; 31 L. J. P. 27; 5 L. T. 362. See also Churchward v. Churchward and Holliday (Queen’s Proctor inter- vening), (1895) P.7; 64 L. J. P. 18; 71 L. T. 782; and M. v. M . ( otherwise A.), ante , p. 196, note (r) . (go) Le Sueur v. Le Sueur (1877), 2 P. D. 80; 36 L. T. 276. DECREE AND INTERVENTION. 201 Causes Act, 1859, s. 4; for the Court will allow persons who are not parties to a suit to intervene and plead upon the question of the custody, maintenance and education of the children of parents whose marriage is the subject of the suit, as to which see “ Custody of and Access to Children,” ante. Chap. VIII. (p. 139). Where a respondent denied the allegations of the petition, and the issues came on for trial at the same time as an issue raised on a plea of the Queen’s Proctor “ that the petition had been filed by arrangement with the respondent and others acting on his behalf,” the Court held that the Queen’s Proctor had nothing to do with the issues between the parties, and that his counsel had no right to comment on the evidence relating to them (g). Where a husband in his answer alleged adultery against his wife, but did not ask for a dissolution, the Court gave the alleged adulterer leave to intervene (r) . Where a wife charged her husband with adultery with a certain lady, and with “ other women unknown and the husband’s counsel stated that he was not in a position to contest the adultery, the lady specifically charged obtained leave to intervene, and succeeded in negativing the charges made against her (s) . Where an answer to a petition for dissolution charges misconduct with third persons, but claims no relief of any sort or kind, such third persons will not be allowed to intervene. But if the answer claims relief, it will be treated as a cross-petition, and intervention will be allowed (t). Decree and intervention. Mat. C. Act, 1857, s. 35 ; Ibid. 1859, s. 4. Issues be- tween parties and issue by Queen’s Proctor heard at same time. Intervention of party charged with adultery. Charges made in answer, but no relief claimed. Party charged not allowed to intervene. Secus, where relief claimed. ( q ) Jessop v. Jessop (1861), 2 S. & T. 301; 30 L. J. P. 193; 4 L. T. 308. See also Studholme v. Studholme and Outturn (Queen’s Proctor showing cause) (1876), 25 W. R. 165. (r) Wheeler v. Wheeler and Hhodes (1889), 14 P. D. 154; 58 L. J. P. 65; 61 L. T. 306. (s) Wade v. Wade (Brooke in- tervening), (1903) P. 16; 72 L. J. P. 1; 87 L. T. 751. if) Lowe v. Lowe, (1899) P. 204; 68 L. J. P. 60; 80 L. T. 202 DECREE AND INTERVENTION. Decree and intervention. Intervention by co- respondent. Intervention by party charged by King’s Proctor with committing adultery with petitioner. Parties coming together after decree nisi. Unreasonable delay alleged in King’s Proctor’s plea. Application by petitioner to rescind decree. A co-respondent who had appeared in a divorce suit, but had not defended, was not afterwards allowed to show cause against the decree being made absolute ( u ) . Where the King’s Proctor has intervened and alleged adultery on the part of the petitioner in a divorce suit, the Court has no power to allow the person with whom such adultery is alleged to have been committed to inter- vene in the proceedings (x ) . Where after decree nisi the parties came together again, the Court, on motion of Queen’s Proctor, without requir- ing him to file a plea, rescinded the decree nisi , and dismissed petition on being satisfied as to facts (y). It has been held that where “ unreasonable delay in presenting the petition” is the ground for seeking to rescind a decree nisi, the, question for the jury is, whether the petitioner knew, or had reason to believe, that the respondent had been guilty of adultery two years or more before presenting his petition ( z ) . The King’s Proctor intervened in a nullity suit, peti- tioner having already instructed her solicitor to take steps to get the decree nisi rescinded. The Court allowed the decree to be rescinded and the petition dismissed on the petitioner’s own motion, with the consent of the King’s Proctor (a) . 575; Harrop v. Harrop, (1899) P. 61; 68 L. J. P. 58; 80 L. T. 171. ( u ) Harries v. Harries and Gregory (1901), 80 L. T. 262. ( x ) Grieve v. Grieve (Queen’s Proctor intervening), (1893) P. 288; 63 L. J. P. 29; 69 L. T. 462. See also Carew v. Carew (Queen’s Proctor showing cause), (1894) P. 31; 63 L. J. P. 74. (y) Flower v. Flower and Others, (1893) P. 290; 63 L. J. P. 28. ( z ) Brougham v. Brougham (Queen’s Proctor intervening), (1895), P. 288; 64 L. J. P. 125. ( a ) A. ( otherwise B .) v. A. (King’s Proctor intervening), (1901) P. 284; 70 L. J. P. 90; 85 L. T. 171; and see further as to intervention of Queen’s Proc- tor generally, Bell v. Bell (Queen’s Proctor intervening) (1889), 58 L. J. P. 54; Rogers v. Rogers (Queen’s Proctor show- ing cause), (1894) P. 161; 63 L. J. P. 97; 70 L. T. 699. DECREE AND INTERVENTION. 203 The Court refused to allow a lady charged with adultery on a wife’s petition for judicial separation to intervene, on the ground that the practice of the Ecclesiastical Courts governed the case, and that practice afforded no precedent for an intervention under such circumstances (b). See further on the subject of this chapter, Part II., tit. a Decree and Intervention” (p. 487); see also “ Costs,” post , i Chap. XVI. (p. 228). Decree and intervention. Intervention in suit for judicial separation. (6) Farrell v. Farrell (1897), 76 L. T. 167. 204 LEGITIMACY DECLARATION ACT, 1858 CHAPTER XIII. LEGITIMACY DECLARATION ACT, 1858. 21 & 22 Viet. This Act (21 & 22 Viet. c. 93) is declared by its heading' c * 93 ‘ to be “ An Act to enable Persons to establish Legitimacy and the Validity of Marriages, and the Right to be deemed natural-born Subjects.” Application to Court for Divorce and Matrimonial Causes for declaration of legitimacy or validity or invalidity of marriage. By section 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 grandfather 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 jurisdiction 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.” LEGITIMACY DECLARATION ACT, 1858. 205 By section 2, “ Any person, being so domiciled or 21 & 22 Yict. claiming as aforesaid, may apply by petition to the said c ' 93 J Court for a decree declaratory of his right to be deemed Application a natural -born subject of Her Majesty; and the said Court declaration shall have jurisdiction to hear and determine such appli- jeered a° cation, and to> make such decree thereon as to the Court natural-born may seem just; and where such application as last afore- subject ‘ said is made by the person making such application as herein mentioned f or 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.” By section 3, “ Every petition under this Act shall be Petition to be accompanied by such affidavit verifying the same, and of by C affidayit d the absence of collusion, as the Court may by any general rule direct.” By section 4, “ All the provisions of the Act of the last Mat. C. Act, session, chapter ejghty-five, so far as the same may be viot. ? .°85) f 1 applicable, and the powers and provisions therein con- to a PP*y to tained in relation to the making and laying before Par- under this liament of rules and regulations concerning the practice Act - and procedure under that Act, and fixing the fees payable upon proceedings before the Court, shall extend to ap- plications and proceedings in the said Court under thjis Act, as if the same had been authorized by the said Act of the last session.” By section 5, “In all proceedings under this Act the Power to Court shall have full power to award and enforce payment erdorce^ of costs to any person cited, whether such persons shall payment of tip- costs. or shall not oppose the declaration applied for, m case the said Court shall deem it reasonable that such costs shall be paid.” By section 6, “ A copy of every petition under this Act, Attorn ey- and of the affidavit accompanying the same, shall, one jfaveTcopy month at least previously to the presentation or filing of of petition 206 LEGITIMACY DECLARATION ACT, 1858. 21 & 22 Viet, c. 93. one month before it is filed, and to he respondent. Court may require persons to be cited. Saving for rights of persons not cited. Person domi- ciled in Scotland may insist, on an action of declarator, that he is a natural-born subject. No proceed- ings to affect final judg- ments, &c. already pro- nounced. such petition, be delivered to Her Majesty’s Attorney- General, who shall he a respondent upon the hearing 1 of 1 such petition and upon every subsequent proceeding relating thereto . ’ ’ By section 7, “Where any application is made under this Act to the said Court, such person or persons (if ajiy), 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 he permitted to become parties to the proceedings, and oppose the application.” By section 8, “ The decree of 1 the said Court shall not in any ease 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.” By section 9, “Any person domiciled in Scotland, or claiming any heritable or moveable property situate in Scotland, may raise and insist in an action of declarator before the Court of Session, for the purpose of having it found and declared that he is entitled to be deemed a natural-born subject of Her Majesty; and the said Court shall have jurisdiction to hear and determine such action of declarator, in the same manner and to the same effect, and with the same power to award expenses, as they have in declarators of legitimacy and declarators of' bastardy.” By section 10, “ No proceeding to be had under this Act shall affect any final judgment or decree already pronounced or made by any Court of 1 competent jurisdic- tion ” (a). ( a ) It was held in Shedden v. that this section does not prevent Att.-Gen. (1860), 2 S. & T. 170; the Court from inquiring into the 30 L. J. P. 217; 3 L. T. 592, merits of a petition, but only that LEGITIMACY DECLARATION ACT, 1858. 207 By section 11, “ The said Act of the last session ” (Le., the Matrimonial Causes Act, 1857) “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.’ ” The following extract, defining the exact meaning of the word “legitimacy,” is from “Conflict of Laws,” by A. V. Dicey, 2nded., 1908, p. 479: — “ Buie 136. — A child horn anywhere in lawful wedlock is legitimate. “ Buie 35.— The law of the father’s domicil at the time of the birth of a child born out of lawful wedlock, and the law of the father’s domicil at the time of the subsequent marriage of the child’s parents, determine whether the child becomes, or may become, legitimate in consequence of the subsequent marriage of the parents ( legitimatio per subsequens matrimonium). “ Case 1 . — If both the law of' the father’s domicil at the time of the birth of the child and the law of the father’s domicil at the time of the subsequent marriage allow of legitimatio per subsequens matrimonium, the child be- comes, or may become, legitimate on the marriage of the parents. “ Case 2. — If the law of the father’s domicil at the time of the birth of the child does not allow of legitimatio per subsequens matrimonium, the child does not become legitimate on the marriage of the parents. “ Case 3. — If the law of the father’s domicil at the time of the subsequent marriage of the child’s parents does not allow of legitimatio per subsequens matrimonium, the child does not become legitimate on the marriage of the parents.” 21 & 22 Viet, c. 93. Acts to be read together. Extract from Dicey’s “ Conflict of Laws.” its decree shall not have any already pronounced of another effect upon the final judgment competent Court. 208 LEGITIMACY DECLARATION ACT, 1858. 21 & 22 Viet, c. 93. Real estate, title to. Lex loci rei sitce. Domicil of petitioner foreign. No property in England. Evidence. Declarations of members of family. Meaning of term post litem mot am. In deciding the title to real estate, the lex loci rei sitce must always prevail, so that a person legitimate by the law of his birthplace and of the place where his parents were married may possibly not be regarded as legitimate for the purpose of taking a real estate elsewhere (&). Where the domicil of a petitioner for a declaration of legitimacy was Australia, and there was no property in England to which he could succeed, the Court dismissed the petition, although it contained a prayer that the Court would declare null and void a certain pretended marriage of the petitioner’s mother (c) . Declarations of members of the family in questions of legitimacy are not admissible if 1 made post litem motam , whether the Us be known or not known to the persons making the declarations. To constitute lis mota for this purpose, there must have been controversy in respect of the very point as to which the evidence is tendered ( d ) . Where the question in litigation was whether A., a man, and B., a woman, were lawfully married in 1773, a letter from C., one of their sons, to D., his uncle, the woman’s brother, was put in evidence, in which C. wrote: “What I want to do is to establish my legitimacy, and whether I have a right to the estate I know not,” D. being then in possession of an estate which had been devised to B . and to her issue lawf ully begotten, and in default of such issue to D . A letter was also put in evidence written by D . to E., the brother of A., informing him of C.’s claim, and adding, “ With regard to myself , the estate I hold I cannot give up, as it is entailed on my children.” The Court held that these letters, written in 1800, constituted the beginning of a controversy upon the validity of the mar- riage of A. and B., although no step was taken to litigate (5) Fenton v. Livingstone (1859), 3 Macq. H. L. C. 497, 556. (c) Johnstone v. Att.-Gen. and Hawkins cited (1873), 43 L. J. P. 3; 29 L. T. 547. ( d ) Shedden v. Att.-Gen. (1860), 2 S. & T. 170; 30 L. J. P. 217; 3 L. T. 592. LEGITIMACY DECLARATION ACT, 1858. 209 that question until 1873; and that all declarations by members of both families subsequent to 1800 were post litemmotam, and therefore inadmissible in evidence (e). The presumption in favour of the legitimacy of a child born in wedlock is not a presumptio juris et de jure , but may be rebutted by evidence, which must be clear and conclusive, and not resting merely on a balance of proba- bilities. Thus in a suit for declaration of' legitimacy where a child had been born 276 days after the last opportunity of intercourse between the husband and wife, and where there was evidence in the wif e’s conduct tending to show that she regarded the child as the offspring of her paramour, the president directed the jury that it was for them to say whether, on the whole of the evidence, the conviction had been brought home to their minds that the husband was not the father of the child (/) . So where in a suit to perpetuate testimony, Earl Poulett, who died in 1899, deposed that he had never had inter- course with his wife (who less than six months after marriage gave birth to a full-grown child) before mar- riage; that soon after marriage his wife confessed to him that she was pregnant by another man, and that thereupon he separated from his wife and never acknowledged the child; the Court held that this evidence was admissible against the child’s legitimacy (g). On a summons for maintenance of children against a husband who had been living apart from his wife some (e) Frederick v. Att.-Gen. (1874), L. R., 3 P. & D. 270; 44 L. J. P. 1; 32 L. T. 39. (/) Bosvilew. Att.-Gen ., Bosvile and Others cited (1887), 12 P. D. 177; 56 L. J. P. 97; 57 L. T. 88. In the course of the judg- ment in this case, the following case was cited: Morris v. Davies (1836), 5 CL & F. 163.. As to the presumption of the legitimacy of D.M.C. a child born shortly after mar- riage, see In re Parsons (1868), 18 L. T. 704. See also Evans v. Evans and Blyth, (1904) P. 274; 73 L. J. P. 87; 91 L, T. 356. (g) Poulett Peerage Claim, (1903) A. G. 395; 72 L. J., K. B. 924 (H. L.). See also Bur- naby v. Baillie (1889), 42 Ch. D. 282; 58 L. J., Ch. 842; 61 L. T. 634. 21 & 22 Viet, c. 93. Presumption of legitimacy of child born in wedlock. Duration of pregnancy. Legitimacy of child begotten before marriage. Evidence of paternity admissible. Husband’s admission of paternity. 14 210 LEGITIMACY DECLARATION ACT, 1858. 21 & 22 Yict. o. 93. Jurisdiction. Title of honour. Marriage apparently bigamous. Legitimacy of petitioner’s grandfather. Jurisdiction of Court. Citing third parties under s. 7. Court will not decide who may be cited. Japanese marriage, validity of. time before their birth, it was held that the husband’s evidence was not admissible to contradict evidence given by other witnesses as to his admission of paternity (h) . This Act gives the Court no jurisdiction to investigate or decide upon a claim to a title of honour only (a) . Where a man and woman were married, the woman having previously gone through the ceremony of 1 marriage with another man, whose wife was living at the time, the Court held that it had jurisdiction under the first section of the Legitimacy Declaration Act to pronounce a decree declaring their marriage valid (fc) . But the Probate Division has no power under this Act to make a decree establishing the legitimacy of the peti- tioner’s grandfather, and the Court commented on the insufficiency of the Act in this respect (?) . When the petition has been filed, the petitioner should apply to the Court f or leave if he desire to cite individuals to see proceedings, and show sufficient reason why they should be cited (m) . The Court will not take upon itself to decide who shall be cited . It is for the petitioner to name whom he wishes to be cited, and to show that it is fitting he be so cited (n) . The petitioner, a British subject with an Irish domicil of origin, was temporarily resident in Japan. Whilst there he married a Japanese woman according to the law of Japan. The Court on proof of the legality of the marriage according to Japanese law, and also that ac- cording to that law the petitioner was precluded from marrying any other woman during the subsistence of the (Ji) TJlverstone Union v. Parle (1889), 53 J. P. 629. ( i ) Frederick v. Att.-Gen. and Frederick cited to see 'proceedings (1874), L. R., 3 P. & D. 196; 43 L. J. P. 32; 30 L. T. 767. (k) Shilson v. Att.-Gen. (1)874), 22 W. R. 831. (l) Dodds v. Att.-Gen. (1880), 42 L. T. 402. ( m ) In re Shedden (1859), 5 Jur., N. S. 151. (m) Upton v. Att.-Gen. (1863), 32 L. J. P. 177. LEGITIMACY DECLARATION ACT, 1858. 211 marriage, held that the marriage was valid in this country, and the children consequently legitimate (o). The Court will recognize the binding effect of a decree of divorce obtained in a foreign country where the hus- band was not domiciled, if the Courts of the country of his domicil would recognize the validity of the decree (jpj) . The Court, on being satisfied by evidence of the validity, of a Gretna Green marriage in 1846, according to the law of Scotland, pronounced a declaration of legitimacy (g). Where a man and woman are proved to have lived together as man and wife for a considerable time, the law will presume that there has been a valid marriage, unless the contrary is clearly proved ; and where it is proved that there was an intention to marry, and that some form was gone through to perfect that intention, those who claim by virtue of the marriage are not bound to prove that all necessary ceremonies were performed according to law (r). C. died intestate at the age of 73 or thereabouts, There was no official record of his birth in existence, or of the marriage of his parents. The Court accepted an extract from a certificate in the Scotch form of the mar- riage of C.’s brother, containing a full description of both his parents, as evidence of C.’s legitimacy (s) . See further, as to the practice under the Legitimacy Declaration Act, 1858, and the Greek Marriages Act (47 & 48 Viet. c. 20), which is identical with it, Part II., tit. “Legitimacy Declaration Act” (p. 498). See also “Costs,” post i Chap. XVI. (p. 228). (p) Armitage v. Att.-Gen. ( o ) Brinkley v. Att.-Gen. (1890), 15 P. D. 76; 59 L. J. P. 51; 62 L. T. 91. See also Shaw v. Att.-Gen. (1870), L. R., 2 P. & D. 156; 39 L. J. P. 81; 23 L. T. 322; Scott v. Att.-Gen. (1886), 11 P. D. 128; 55 L. J. P. 57; 56 L. T. 924; Warter v. Warter (1890), 15 P. D. 152; 59 L. J. P. 87; 63 L. T. 250. 14 V. (Gillig cited), (1906) P. 135; 75 L. J. P. 42; 94 L. T. 614. ( q ) Gardner v. Att.-Gen. (1889), 60 L. T. 839. (r) Shephard , In re, George v. Thyer, (1904) 1 Ch. 456; 73 L. J., Ch. 401; 90 L. T. 249. (s') Wigley v. Solicitor to the Treasury, (1902) P. 233; 71 L. J. P. 115. ( 2 ) 21 & 22 Viet, c. 93. American divorce, validity of. Gretna Green marriage. Presumption of marriage from cohabi- tation. Intention. Extract from Scotch mar- riage certifi- cate accepted as evidence of legitimacy of bridegroom’s brother. 212 SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895. CHAPTER XIV. SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895. 58 & 59 Viet, c. 39. The above Act, terms of which follow in extenso, came into operation on January 1st, 1896 (a). A.D. 1895. S. 1. Short title. S. 2. Application of Act. S. 3. Commence- ment of Act. S. 4. By and to whom orders may be ap- plied for. 24 & 25 Viet, c. 100. An Act to amend the Law relating to the Summary Jurisdiction of Magistrates in reference to Married Women. [6th July, 1895.] 1 . This Act may he cited for all purposes as the Sum- mary Jurisdiction (Married Women) Act, 1895. 2. This Act shall not extend to Scotland or Ireland. 3. This Act shall come into operation on the first day of JanUjary, one thousand eight hundred and ninety-six. 4. Any married woman whose hu,sband shall have been convicted summarily of an aggravated assault upon her within the meaning of section forty-three of the Offences against the Person Act, 1861, or whose husband shall have been convicted upon indictment of an assault upon her, and sentenced to pay a fine of more than five pounds or to a term of imprisonment exceeding two months, or whose husband shall have deserted her, or whose husband shall have been guilty of persistent cruelty (a) to her, or wilful neglect to provide reasonable maintenance for her or her infant children whom he is legally liable to maintain, and shall by such cruelty or neglect have caused her to leave and live separately and apart from him (&), may apply to any court of summary ( a ) It would seem that a num- ber of acts of cruelty, committed on one day, may amount to per- sistent cruelty: Broad v. Broad (1898), 78 L. T. 687. ( b ) This provision, requir- ing the wife to have left the home before she can obtain SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895. 213 jurisdiction acting within the city, borough, petty ses- sional or other division or district, in which any such conviction has taken place, or in which the cause of com- plaint shall have wholly or partially arisen, for an order or orders u;nder this Act: Provided that where a married woman is entitled toi apply for an order or orders under this section on the ground of the conviction of her hus- band upon indictment she may apply to the court before whom her husband has been convicted, and that court shall, for the purposes of this section, become a court of summary jurisdiction, iand shall have the power without a jury to hear a|n application, and make the order or orders applied for (c) . 5. The court of summary jurisdiction to which any application under this Act is made may make an order or orders containing all or any of the provisions following, viz. : — (a) A provision that the applicant be no longer bound to cohabit with her husband (which provision while in force shall have the effect in all respects of a decree of judicial separation on the ground of cruelty) : (b) A provision that the legal custody of any children of the marriage between the applicant and her husband, while under the age of sixteen years, be committed to the applicant: (c) A provision that the husband shall pay to the applicant personally, or for her use, to any officer of the court or third person on her behalf, such weekly sum, not exceeding two pounds, as the the benefit of this section, is a great hardship, and has been found in practice to be a serious difficulty, and it is to be hoped that the law will be amended in this respect. (c) Where a husband was in- dicted for shooting at his wife with intent to murder, and con- victed of a common assault only, the judge refused to make a separation order under this sec- tion and section 5, stating that the section did not apply to the case: Reg. v. Corrigan (1898), 62 J. P. 522. 58 & 59 Yiot. c. 39. By and to whom orders may be applied for. S. 5. Powers of Court. Judicial separation. Custody of children. Maintenance. 214 SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895. 58 & 59 Yict. c. 39. Costs. S. 6. Limitations of powers of Court. S. 7. Court may vary or dis- charge order. S. 8. Procedure. S. 9. Enforcement of orders for court shall, having regard to the means both of the husband and wife, consider reasonable: (d) A provision for payment by the applicant or the husband, Or both of them, of the costs of the court and such reasonable costs of either of the parties as the court may think fit. 6. No orders shall be made under this Act on the application of a married woman if it shall be proved that such married woman has committed an act of adultery: Provided that the husband has not condoned, or connived at, or by his wilful neglect or misconduct conduced to such act of adultery . 7. A court of summary jurisdiction acting within the city, borough, petty sessional or other division or district, in Which any order under this Act or the Acts mentioned in the schedule hereto, or either of them, hjas been made, may, on the application of the married woman or of her husband, and upon cause being shown upon fresh evidence to the satisfaction of the Court at any time, alter, vary, or discharge any such order, and may upon any such appli- cation from time to time increase or diminish the amount of any weekly payment ordered to be made, so that the same do not in any case exceed the weekly sum of two pounds. If any married woman upon whose application an order shall have been made under this Act, or the Acts mentioned in the schedule hereto, or either of them, shall voluntarily resume cohabitation with her husband, or shall commit an act of adultery, such order shall upon proof thereof be discharged. 8. All applications under this Act shall be made in accordance with the Summary J urisdiction Acts, and, in the case of a conviction of a husband for aggravated assault upon his wife, her application may, by leave of the Court, be made by summons to be issued and made returnable immediately upon such conviction. 9. The payment of any sum of money directed to be paid by any order under this Act may be enforced in the SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895. 215 same manner as the payment of money is enforced under an order of affiliation. 10. If in the opinion of a court of summary juris- diction the matters in question between the parties or any of them would be more conveniently dealt with by the High Court, the court of summary jurisdiction may refuse to make an order under this Act, and in such case no appeal shall lie from the decision of the court of summary jurisdiction: Provided always, that the High Court or a judge thereof shall have power by order in any proceeding in the High Court relating to or com- prising the same subject matter as the application so refused as aforesaid, or any part thereof, to direct the court of summary jurisdiction to re-hear and determine the same. 11. Save as is hereinbefore provided, an appeal shall lie from any order or the refusal of any order by a court of summary jurisdiction under this Act to the Probate, Divorce, and Admiralty Division of the High Court of Justice. Pules of Court may from time to time be made regulating the practice and procedure in such appeals. And, until altered or repealed, any rules already made as to appeals under section four of the Matrimonial Causes Act, 1878, shall apply to appeals under this Act. 12. The Acts specified in the schedule to this Act are hereby repealed to the extent therein mentioned, except so far as they apply to Ireland . SCHEDULE. ENACTMENTS REPEALED. Year and Chapter. Title or Short Title. Extent of Repeal. 41 & 42 Viet. c. 19 ... . 49 & 50 Viet. c. 52 . . . . Matrimonial Causes Act, 1878 Married Women (Maintenance in Case of Desertion) Act, 1886. Section 4. The whole Act. 58 & 59 Viet, c. 39. payment of money. S. 10. Court may refuse an order in cases more fit for the High Court. S. 11. Appeal. S. 12. Repeal of Acts. 216 SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895. 58 & 59 Yiot. c. 39. Protection for wife or hus- band of habitual drunkard. Licensing Act, 1902 (2 Edw. 7, c. 28), s. 5, sub-ss. 1, 2. Habitual drunkard, what is. Appeal. Decisions under. Persistent cruelty. Effect of s. 4 retrospective. The Licensing Act, 1902 (2 Edw. 7, c. 28), by section 5, sub-section 1, extends the provisions of the Summary Jurisdiction (Married Women) Act, 1895, to all cases where the husband of a married woman is an habitual drunkard as defined by section 3 of the Habitual Drunkards Act, 1879. And by section 5, sub-section 2, all the provisions of section 5 of the Summary Jurisdiction (Married Women) Act, 1895, are re-enacted for the protection of a “ married man ” whose wife is an habitual drunkard as defined by section 3 of the Habitual Drunkards Act, 1879. Where evidence was given that a husband was “ con- stantly drinking,” “very rarely sober,” and that he assaulted his wife and threatened other people, the Court held that the justices were right in holding th,at he was “an habitual drunkard” within the meaning of the Act (i d ) . The only appeal from an original order under the Summary Jurisdiction (Married Women) Act, 1895, is to the Divisional Court of the Probate, Divorce and Admi- ralty Division (e); but an appeal lies by way of special case to the King’s Bench Division, from a committal under a warrant, made on an information or complaint that weekly payments are in arrear, by virtue of sec- tion 9 of this Act, and section 4 of the Bastardy Law Amendment Act, 1872 (/). The f ollowing are the principal reported decisions of the Divisional Court of the Probate, Divorce and Admiralty Division as to the above statute. Section 4 of this Act is retrospective in jts operation, and applies to acts of cruelty committed before the Act came into force ( g ) . ( d ) Robson v. Robson (1904), 68 J. P. 416. (e) Manders v. Manders , (1897) 1 Q. B. 474; 66 L. J., Q. B. 296. (/) Rnther v. Ruther , (1903) 2 K. B. 270; 72 L. J., K. B. 826. (g) Lane v. Lane, (1896) P. 133; 65 L. J. P. 63; 74 L. T. 557. 217 SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895. Upon a summons for maintenance under this Act, the Court must be satisfied that the husband is in receipt of actual earnings or has the capability of earning a liveli- hood. Evidence of means cannot be entirely dispensed with (h ) . Although there is no hard and fast rule as to the amount of allowance to be made to a wife, the justices will do well to follow the practice of the Divorce Court in suits for judicial separation, and, when there are no children, allow the wife one-third of the joint income (£). In computing the amount of such allowance, it is the duty of the justices to inquire into the joint means of the husband and wife, and in doing so they ought to take into account a voluntary allowance paid to the wife by a person other than her husband (Jc) . They are also entitled to take into consideration the existence of any infant children by a former marriage which the wife may have to support, a husband being liable for the maintenance of his step children (l). By section 5 (a), under which an order “shall have the effect in all respects of a decree of j udicial separation on the ground of cruelty,” it was thought by many prac- titioners that When a magistrate under this section gave a woman a separation order that she was in the same position as she would have been had she obtained a decree of judicial separation from the Divorce Court, and that if she could afterwards prove adultery she would then be able to apply to the Divorce Court and obtain a dissolu- tion of her marriage. ( [h ) Earnshaw v. Earnshaw, (1896) P. 160; 65 L. J. P. 89; 74 L. T. 560. See also Walton v. Walton (1900), 64 J. P. 264. (i) Cobb v. Cobb (No. 1), (1900) P. 294; 69 L. J. P. 125; 83 L. T. 716. See also Barker v. Barker (1905), 74 L. J. P. 74. (k) Nott v. Nott, (1901) P. 241; 70 L. J. P. 94; 84 L. T. 573; Wilcox v. Wilcox (1902), 66 J. P. 166, where the Court also held that the maintenance order should, on its face, recite the con- viction of the husband. (V) Hill v. Hill, (1902) P. 140; 71 L. J. P. 81; 86 L. T. 597. 58 & 59 Viet, c. 39. Court must be satisfied husband has means or capability of earning means. Amount of allowance to wife. 218 SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895. 58 & 59 Yict. c. 39. It was not until 1905 that the question was first raised in Smith v. Smith (m). The parties were married on Nov. 25th, 1896, and the husband deserted the wife in Jan., 1897. On March 5th, 1897, the wife obtained a separation order and allowance. In Feb., 1905, the hus- band wrote admitting adultery, and the wife petitioned for a divorce. When the case came before Mr. Justice Bargrave Deane on 22nd June, 1905, he expressed a doubt as to whether the necessary period of two years for statutory desertion under the Matrimonial Causes Act, 1857, had been proved, but after consultation with the President on J uly 3rd he granted a decree nisi. Then on the 19th Dec., 1905, was heard the case of Dodd v. Dodd(n ) . The parties were married in 1891, and the wife left the husband in August, 1896, owing to his drunkenness and neglect to provide maintenance for her and her child. On Sept. 9th, 1896, the wife obtained an order for separation and maintenance under the Summary Jurisdiction Act, 1895. The husband committed adul- tery in 1905, whereupon the wife petitioned for a divorce on the grounds of adultery and desertion . On the hearing, the papers were sent to the King’s Proctor and the case was argued by the Attorney-General on the 19th March, 1906, and on the 27th April the President delivered judgment. He dismissed the petition [disagreeing with Smith v. Smith], holding that a wife who takes a separation order under the Summary Jurisdiction Act, 1895, within two years from the time when desertion commenced cannot subsequently, after the expiration of the two years, allege that her husband has deserted her for the space of two years and upwards without reasonable excuse so as to constitute the offence contemplated by the Matrimonial Causes Act, 1857. The next case was Fades v. Fades (o). The parties O) (1905) P. 249; 74 L. J. P. 49; 94 L. T. 709. P. 113; 93 L. T. 457. (o) (1906) P. 326; 75 L. J. (w) (1906) P. 189; 75 L. J. P. 95; 95 L. T. 547. SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895. wore married in 1885. Early in 1901 the husband left his wife, but returned after an interval of some weeks. A few months later he left her again and never returned . In May, being destitute, she applied to the police court, obtaining a separation order and an order for 10s. a week. This order was not complied with, and the husband was found to be living in adultery. Mr. Justice Bucknill, approving Smith v. Smith and distinguishing Dodd v. Dodd, granted the wife’s petition for divorce. The last case of this series is Harrimauv . Harriman (p) . In July, 1905, the husband deserted the wife, who in March, 1906, applied to the magistrate, who granted a separation order and a weekly allowance. In 1907 the husband committed adultery, and the wife petitioned for divorce. The case came before Mr. Justice Bucknill, who dismissed the petition, thereby approving Dodd v. Dodd and overruling Smiths. Smith and Fades v. Fades. The petitioner appealed, and the case was heard before the full Court. Mr. Justice Bucknill’s decision was upheld. Where, therefore, a married woman applies for an order under section 5 of the Summary Jurisdiction (Married Women) Act, 1895, upon the ground of de- sertion only, a non-cohabitation clause is, in general, an inappropriate remedy and should not be inserted in the order . By section 8, “ All applications under this Act shall be made in accordance with the Summary Jurisdiction Acts.” By the Summary Jurisdiction Act, 1848 (11 & 12 Viet, c. 43), section 11, “ . . . . in all cases where no time is already or shall hereafter be specially limited for making any such complaint or laying any such information in the Act or Acts of Parliament relating to each particular case, such complaint shall be made and such information shall be laid within six calendar months from the time 219 58 & 59 Viet, c. 39. Summary J urisdiction Act, 1848 (11 & 12 Viet, c. 43), s. 11. (?) (1909) P. 123; 78 L. J. P. 62; 100 L. T. R. 557. 220 SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895. 58 & 59 Yict. c. 39. Desertion continuous act. In other cases applications must be made in every case within six months. Cohabitation, what amounts to. when the matter of such complaint or information respec- tively arose.” But desertion is a continuing act, and an application by a wife need not be made within six months of the com- mencement of the desertion (g) . On the other hand, persistent cruelty by a husband 1 and wilful neglect by him to provide reasonable maintenance are not continuing offences, and the complaint must in each case he made within six calendar months of the offence (r) . Cohabitation may exist between married persons with- out their actually living under the same roof 1 , and if a husband habitually visits his wife and has sexual inter- course with her he may be as much guilty of' desertion, if he withdraws from her, as if they had been actually residing together (s'). A wife had been living apart from her husband for some time, and on June 23rd, 1899, she called upon him and asked him to take her back, which he refused to do. The justices refused to hear evidence of anything previous to June 23rd, 1899, and held that the husband’s refusal on that date to take his wife back amounted to desertion on or since that date. The Court held that the mere fact that the wife had on a certain day asked her husband to take her back, and that he had refused to do so, did not per se amount to legal desertion on or since that date; that the justicels were wrong in refusing to hear evidence of what occurred before that date, and that the case must be remitted (tf). (q) Heard v. Heard, (1896) P. 188; 65 L. J. P. 111. (r) Ellis v. Ellis, (1896) P. 251; 65 L. J. P. 124; 75 L. T. 390. See also Medway v. Med- way, (1900) P. 141; 69 L. J. P. 56; 82 L. T. 627. (s) Bradshaw v. Bradshaw, (1897) P. 24; 66 L. J. P. 31; 75 L. T. 391; followed in Huxtahle v. Huxtahle (1899), 68 L. J. P. 83. See also Brown v. Brown (1898), 79 L. T. 102. (2) Wassell v. Wassell (1899), 68 L. J. P. 127; 81 L. T. 496. See also Charter v. Charter (1901), 84 L. T. 272; and see further on this point, Snape v. Snape (1900), 64 J. P. 793. SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895 . 221 A deed of separation is a bar to the jurisdiction of’ the justices on the ground of desertion, even though the husband may have failed entirely to pay an allowance (which he had covenanted under such deed to pay to his wife) for more than two years at the date on which she takes out a summons against him under the Act (u ) . A husband who is summoned before justices for deser- tion should have the opportunity afforded him of proving that he had reasonable cause or excuse for the separa- tion (a?) . Apart from any special provision in the Act, a return by a wife to cohabitation pending the adjournment of a summons for desertion and before an order is made, puts an end to the cause of complaint, and no order can subse- quently be made upon the summons (y ) . In administering the Act, courts of summary juris- diction should be careful not to interfere too much in married life. Upon appeals under this Act, the Divisional Court will not reverse a finding of fact, unless it be shown that the court of summary jurisdiction was clearly wrong in the conclusion at which it arrived ( z ) . The justices’ clerks should take notes of the evidence, and of the reasons of the justices for their decision (a); and if the clerk with the consent of the parties allows a 58 & 59 Viet, c. 39. Deed of separation. Subsequent summons for desertion. Desertion. Reasonable excuse by husband. Wife returning- to cohabitation pending proceedings. Duty of justices. Appeals on findings of fact. Duty of jus- tices’ clerks. (u) Piper v. Piper, (1902) P. 198; 71 L. J. P. 100; 87 L. T. 150; Rowlands v. Rowlands (1902), 86 L. T. 125. ( x ) Frowd v. Frowd , (1904) P. 177; 73 L. J. P. 60; 90 L. T. 175. (y) Williams v. Williams, (1904) P. 145; 73 L. J. P. 31; 90 L. T. 174. ( 2 ) Harling v. Harling, W. N. (1896) 28; 31 L. J. Notes, 160; 74 L. T. 559. (a) Harling v. Harling, supra; J agger v. dagger, W. N. (1896) 63; 31 L. J. Notes, 355; Robinson v. Robinson, (1898) P. 153; 67 L. J. P. 77; 78 L. T. 292; Walton v. Walton, (1900) P. 147; 69 L. J. P. 54; 82 L. T. 627; Cobb v. Cobb (No. 2), (1900) P. 145; 69 L. J. P. 52; 82 L. T. 626. See also Barker v. Barker (1905), 74 L. J. P. 74; Wenham v. Wenham (1906), 95 L. T. 548. 222 SUMMARY JURISDICTION (MARRIED WOMEN) ACT, 1895. 58 & 59 Viet, c. 39. Fresh evidence, what is. Before Divi- sional Court. Summons out of time. J urisdiction of justices. shorthand not© to be taken in the place of his ordinary note, he must certify the transcript of such note as correct (6) . “ Fresh evidence/ ’ within the meaning of section 7, is evidence which could not have been made available at the date of the order, or else it must relate to something' which has happened since the date of the order. But in a case where the husband was so ill at the time of the application to the justices that he could not instruct his solicitor or give the names of his witnesses, and the justices refused an adjournment, the Court, on appeal, after his partial recovery, ordered the case to be remitted to the justices, for re-hearing ab initio (c) . Fresh evidence will not, as a rule, be received by a Divisional Court hearing appeals from justices under this Act (d) . Where a summons is withdrawn at the hearing, the complaint on which it is founded comes to an end, and the justices have no jurisdiction to issue a fresh summons founded on the same ground of complaint (e). See further on the subject of this chapter, Part II., tit. “Summary Jurisdiction (Married Women) Act, 1895” (p. 511). (b) Royle v. Royle, (1909) P. 24; 78 L. J. P. 34; 99 L. T. 882. ( o ) Johnson v. Johnson , (1900) P. 19; 69 L. J. P. 13; 81 L. T. 791. See also Wrightman v. Wrightman (1906), 94 L. T. 620. 0 d ) Snape v. Snape (1898), 62 J. P. 153. (e) PicJcavance v. Pickavance, (1901) P. 60; 70 L. J. P. 14; 84 L. T. 62; Stokes v. Stokes, (1911) P. 195; 105 L. T. 416. NEW TRIAL AND RE-HEARING. 22 3 CHAPTER XV. NEW TRIAL AND RE-HEARING. The term “new trial” is used when the case has been tried by a jury ; “re-hearing” when the case has been heard before the Court itself. Since the passing of the Supreme Court of Judicature Act, 1890, every motion for a new trial in a matrimonial cause must be made in the first instance to the Court of Appeal. It was, however, decided by the Court of Appeal in 1897 that, notwithstanding the provisions of the above statute, a motion for the re-hearing of a divorce case must be made, in the first instance, to a Divisional Court of the Probate, Divorce and Admiralty Division ( a ) . A new trial will not be granted on the ground of the verdict being against the weight of evidence, simply because the judge who tried the case might have arrived at an opposite conclusion, or because the judge did not give as much weight to some parts of the evidence as they deserved. Before it will grant a new trial on this ground, the Court must be satisfied that there has been error or miscarriage of justice (b) . On the other hand, the Court may order a new trial ( a ) Smith v. Smith (J. M. Nowers intervener), (1897) P. 293; 66 L. J. P. 151; 77 L. T. 206. See also Watson v. Watson (1903), 89 L. T. 78; Holden v. Holden and Pearson (1902), 102 L. T. 398. (5) Scott v. Scott (1863), 3 S. & T. 320; 33 L. J. P. 1; 9 L. T. 454; Miller v. Miller and. Hicks (1862), 2 S. & T. 427; 31 L. J. P. 73; 5 L. T. 850; Codrington v. Codrington and Anderson (1865), 4 S. & T. 63; 34 L. J. P. 60; G-ethin v. Gethin (Queen’s Proctor intervening) (1862), 2 &. & T. 560 ; 31 L. J. P. 57; 5 L. T. 721. Distinction in terms. Supreme Court of Judicature Act, 1890 (53 & 54 Yict. c. 44), s. 1. Motions for re-hearing. Verdict against weight of evidence. Must be miscarriage of j ustice for new trial, but may be new trial 224 NEW TRIAL AND RE-HEARING. New trial, &c. though judge satisfied with verdict. Re-hearing as to some of the charges only granted. Jury dis- agreeing as to some charges. Verdict for petitioner as to rest. Mat. C. Act, 1857, s. 31. Issues for' Court. on the ground that the verdict is against the weight of evidence, although the judge who tried the case may he satisfied with the verdict (o) . A wife having charged her husband with cruelty by the communication of disease, and also by personal violence, the Court found, on the evidence, that the charge of com- munication of disease was not proved, but that the charge of personal violence was proved : on the application of the husband the Court, on the ground of surprise, granted a re-hearing of the charge of personal violence, but refused a re -hearing of the charge of infection (<#) . In a suit for dissolution of marriage, brought by the wife, the jury found a verdict for the petitioner on a charge of cruelty, but were unable to agree to a verdict on a charge of adultery; the Court refused to allow a second trial, on the question of adultery only, but gave the peti- tioner the alternative, either to have a rule calling 1 upon the respondent to show cause why a decree of judicial separation should not be made, on the ground of his cruelty, or to set down all the questions at issue for a second trial (e) . It is no ground for a new trial that the jury has dis- agreed upon some issue of fact raised by a plea to the discretion of the Court under section 31 of the Matrimonial Causes Act, 1857. The determination of such issues rests solely with the Court, and the verdict of the jury on such an issue is asked merely to assist the Court in forming its opinion (/) . ( c ) Stone v. Stone and Apple- ton (1864), 3 S. & T. 608; 34 L. J. P. 33. (d) Lee v. Lee (1872), L. R., 2 P. & D. 409; 41 L. J. P. 85; 27 L. T. 324. (e) Godrich v. Godrich (1872), ’Ll. Rv, 2 P. & D. 392; 41 L. J. P. 45; 26 L. T. 855; and see further as to the course pursued when the Court is dissatisfied with the ver- dict as to some of the issues, Fitzgerald v. Fitzgerald (1863), 3 S. & T. 400; 10 L. T. 510; Cartlidge v. Cartlidge, lb. 406; 32 L. J. P. 126; 8 L. T. 334. (/) Narracott v. Narracott and Hesketh (1864), 3 S. & T. 408; 33 L. J. P. 132. NEW TRIAL AND RE-HEARING. 225 An inconsistent verdict is not a ground for a new trial ; unless it prevents the Court from ascertaining the sub- stantial opinion of the jury (g). Where a respondent was persuaded by his solicitor to withhold evidence which would have gone to clear his character as a gentleman and a man of honour, but would not otherwise have affected the questiohs at issue, the Court refused a new trial ( h ). On the other hand, where a witness made a mistake in a date, which, if correctly given, might have affected the verdict, the Court granted a new trial (i). The Court will grant a new trial, where fresh evidence has been obtained since the original trial, if it is of opinion that such evidence would lead to a different verdict (1c ) . When a verdict has been found for the respondent the Court will not dismiss the petition until the time allowed for moving a new trial has elapsed (/) ; for the controversy between the parties is not ended until that period has elapsed (ml ) . If a verdict has been found against two co-respondents in a suit for dissolution of marriage, and the Court after- wards, on the application of one of them, grants a new trial, on the ground that a verdict against him was con- trary to the weight of the evidence, there must be a new trial as to both (n) . Where a jury found that the respondent had committed ( But in Robertson v. Robertson (e) it was decided by the Court of Appeal that in a divorce suit the costs of the wife payable by the husband are not limited to- the amount paid into Court or secured, so that the Court may, if it so please, order costs to the f ull amount to be paid even to a guilty wife. Where the husband was found guilty of cruelty, and both husband and wife were found guilty of adultery, thej Court of Appeal reversed a decree for judicial separation, but gave the wife her costs, notwithstanding her adultery, both in the Court below and on the appeal (/) . Where a husband had to pay certain costs of an un- successful suit for nullity brought against him by his wife, but the wife subsequently obtained a divorce from him, he was allowed to deduct when paying his wife’s costs in the second suit the amount which he had paid on account of her costs in the suit for nullity ( g ) . The rule as to the wife’s costs applies equally to suits for nullity of marriage (h ) . (b) See Dixon v. Dixon (1859), 28 L. J. P. 96; Kaye v. Kaye (1858), 4 S. & T. 239. (c) See Part II., tit. “Costs” (p. 540). ( d ) But see on this point Keats v. Keats and Montezuma (1859), 1 S. & T. 324; 28 L. J. P. 57; Bolt v. Bolt (1864), 3 S. & T. 604; 3 L., J. P. 51. ( e ) (1881), 6 P. D. 119; 51 L. J. P. 5; 45 L. T. 237. But see on this point Smith v. Smith, Major , Child and Babett (1882), 7 P. D. 84; 51 L. J. P. 31; 46 L. T. 696. (/) Otway v. Otway, Otway v. Otway and Hoffer (1888), 13 P. D. 141; 57 L. J. P. 81; 59 L. T. 153. (<7) Ditchfield v. Ditchfield (1869), L. R., 1 P. & D. 729; 38 L. J. P. 51; 20 L. T. 1015. ( 'h ) M. (Jalsely called C.) v. C. (1872), L. R., 2 P. & D. 414; 41 Wife’s costs. Against husband. Not limited to amount fixed by registrar. Recent deci- sion as to. Otway v. Otway. Full costs allowed to wife though guilty of adultery. Two suits, costs of first suit deducted from second. Suits for nullity. 230 COSTS. Wife’s costs. Solicitor guilty of misconduct. Ecclesiastical Courts, wife with separate estate. Varying settlement, costs. Wife peti- tioner in nullity suit — security for costs. Examples of cases where wife con- demned in costs. Judicial separation. Restitution of conjugal rights. When the husband has been ordered by the registrar to give security for his wife’s costs up to a certain amount, costs to that amount are always allowed her, whether she be successful or not, unless her solicitor has been guilty of some misconduct, or has instituted the suit knowing that it was without reasonable ground (i ) . In the Ecclesiastical Courts if a wife was possessed of separate estate, the husband was not held liable for her costs where she was unsuccessful, and this rule has been followed in cases of judicial separation in the Divorce Court (k ) . The Court refused to make any order as to costs in varying a settlement in a case where it extinguished the husband’s interest in the wife’s money, and she had the whole income (l ) . The Court has held that it has power to order a wife petitioner in a nullity suit to give security f or costs where she has separate estate (m ) . Where a petitioner for judicial separation desired to substitute a petition for dissolution of marriage, she was only allowed to do so on paying the costs of the suit up to the time of the motion (w) . Where a wife evaded service of a decree for restitution by remaining out of the jurisdiction, the Court, on being satisfied that she had a sufficient separate income, con- demned her in the costs of the proceedings (o). In suit for restitution, the Court will decline to make L. J. P. 37; 26 L. T. 321. See also Jackson ( otherwise Macfar- lane ) v. Jackson, (1908) P. 308; 77 L. J. P. 147. ( i ) Flower v. Flower (1873), L. R.> 3P.&D. 132; 42 L„ J. P. 45; 29 L. T. 253. See also Kay v. Kay, (1904) P. 382; 73 L. J. P. 108; 91 L. T. 360. (k) Heal v. Heal (1867), L. R., 1 P. & D. 300; 36 L. J. P. 62. ( l ) Boynton v. Boynton (1861), 30 L. J. P. 156; 2 S. & T. 275; 4 L. T. 258. (m) Be B. v. Be B. (1875), 44 L. J. P. 41; 33 L. T. 263. (n) Lewis v. Lewis (1860), 29 L. J. P. 123. (o) Miller v. Miller (1869), L. R., 2 P. & D. 13. COSTS. 231 the usual order for wife’s costs when the grounds of the litigation were unreasonable (p ) . Where a respondent and co-respondent both appeared and filed answers containing countercharges, but offered no evidence in support of them at the hearing, and the respondent had a large separate income, the Court ordered her to pay the costs of the proceedings, and the co- respondent to pay such costs as had been incurred by the issues he had raised in his answer (q) . Where an order for costs was made against the co- respondent, and it was proved that the wife was possessed of separate estate, an order was also made against her for the costs of the suit (r) . The Court need not inquire whether at the time the wife committed the wrongful act she bad any separate estate, but only whether she has or has not at the time when it has to arrive at a decision (s ) . Where in a suit for nullity by a next of kin on the ground of the woman’s insanity at the time of the mar- riage, the petitioner delayed three years in instituting the suit, and the respondent was put to much expense in the meantime in maintaining the lunatic, the Court refused to make any order as to costs ( t ). Where a wife petitioner returned to her husband pending suit, the Court would only allow the petition to be dismissed on the husband’s application on the payment of her taxed costs (it) . The Court made an order for the taxation and payment of the wife’s costs in a matrimonial suit against the Wife’s costs. Dissolution of marriage. Wife and co-respondent both con- demned in costs. Court may condemn wife in costs with- out inquiring whether she has separate estate. Petition by next of kin for nullity. Wife re- turning to cohabitation Husband apparently unable to pay costs. (p) Beer v. Beer (1906), 94 L. T. 704. (q) Milne v. Milne and Fowler (1871), L. R., 2 P. & D. 202. (r) Millward v. Millward and Andrews (1887), 57 L. T. 569. (s') Hyde v. Hyde, Fellgate and Others (1888), 59 L. T. 523. ( t ) Hancock (falsely called, Peaty) v. Peaty (1867), L. R., 1 P. & D. 335; 36 L. J. P. 57. (u) Cooper v. Cooper (1864), 3 S. & T. 392; 33 L. J. P. 71; 10 L. T. 275. 232 COSTS. Wife’s costs. Wife un- successful in suit but successful in counter- charges. Wife success- ful. Mat. C. Acts, 1857, 1858, and Rules of 1866. Husband’s liability at common law. As to con- demning wife in costs of husband. husband, notwithstanding his apparent inability to pay them (a?) . Where a guilty wife succeeded in establishing counter- charges against her husband, the Court gave her costs (j /) . Where a wife was successful she was held entitled to the payment of her full costs, notwithstanding that a motion for a new trial and a bill of exceptions were pending (z ) . The provisions relating to costs contained in the Matri- monial Causes Acts, 1857 and 1858, and the Rules of Court, 1866, made under those Acts, provide a remedy for the recovery of costs concurrently with, and not in sub- stitution for, the provisions of the common law. At common law a husband is liable to an action for costs, as between solicitor and client, necessarily incurred by his wife in filing a petition for a judicial separation, although the petition is not proceeded with, and the course prescribed by the practice of the Divorce Court for obtain- ing the wife’s costs has not been pursued (a); and he is also liable for all costs, as between solicitor and client, reasonably incurred by her in divorce proceedings, in- cluding all extra costs over and above those allowed on taxation in the Divorce Court (5). The Court may condemn a wife to pay her husband’s costs in any proceeding in the Divorce Court, though it will not do so if it would thereby deprive her of the means of subsistence (c ) . ( x ) Ward v. Ward (1859), 1 S. & T. 484; 29 L. J. P. 17. (y) Caldecott v. Caldecott and Cartwright (1873), 29 L. T. 699. ( 'z ) Cooke v. Cooke and Allen (1864), 3 S. & T. 603; 34 L. J. P. 15; Chetwynd v. Chetwynd (1865), 4 S. & T. 108; 34 L. J. P. 65. See also Burroughs v. Burroughs , Burroughs v. Bur- roughs and Silcock (1862), 31 L. J. P. 124. (a) Rice v. Shepherd (1862), 12 C. B., N. S. 332; 6 L. T. 432. (5) Ottaway v.- Hamilton (1878), 3 C. P. D. 393; 47 L. J., C. P. 725; 38 L. T. 925. (c) Carstairs v. Carstairs, Dickenson and Others (1864), 3 S. & T. 538; 33 L. J. P. 170; COSTS. ‘233 The costs of an unfounded defence will be dis- allowed (d ) . A respondent and co-respondent denied adultery, and the respondent further charged the petitioner with adul- tery . It appeared that this latter charge was substantially the joint defence of the respondent and the co-respondent, and the jury found that neither respondent, co-respondent nor petitioner had been guilty of adultery. The Court allowed the respondent the whole of her costs in sup- porting the first issue, although they exceeded the sum deposited in the registry, but held that she was entitled only to a moiety of the costs incurred with respect to the second (e). Where a new trial is granted on application of' the wife, the Court will not usually impose upon her the terms of payment of costs, if' she has no means, but the husband must pay the costs of both parties (/) . In a very early case the Court refused to allow the wife’s costs of appeal to be taxed against her husband (g ) ; also the costs of an attempt on her part to prevent a decree nisi pronounced against her from being made absolute (Ji ) . So, where she applies to have the cause tried by a special jury, the Court sometimes refuses her the costs of the special jury(y). Where a respondent, having obtained an order upon the petitioner to pay to her or her attorney a certain amount of costs, endeavoured to enforce such order by a writ of fi. fa. but failed in recovering them, the Court ordered the proceedings in the divorce suit to be Wife’s costs. Unfounded defence. Counter- charges against hus- band by respondent, joint defence of respondent and co- respondent. New trial. Appeal. Special jury. Staying proceedings. 10 L. T. 696. See also Clark v. Clark and Saldji, (1906) P. 331; 76 L. J. P. 16; 95 L. T. 550. (d) Clark v. Clark, Perrin and Cumins (1865), 4 S. & T. Ill; 34 L. J. P. 71; 12 L. T. 148. (e) Burroughs v. Burroughs, Burroughs v. Burroughs and Sil- cock (1862), 31 L. J. P. 124. (/) Nicholson v. Nicholson (1863), 3 S. & T. 214; 32 L. J. P. 127; 9 L. T. 118. (g) Thompson v. Thompson and Slurmfells (1861), 2 S. & T. 404; 31 L. J. P. 213. (Ji) Stoate y. Stoate (1861), 2 S. & T. 384; 30 L. J. P. 173; 5 L. T. 138. (i) Scott v. Scott (1862), 32 L. J. P. 40. 234 COSTS. Wife’s costs. Second suit on different grounds. Application to condemn wife in costs. Notice. Abortive trial. stayed until the costs haJd been paid by the peti- tioner, but refused to extend the order to the expenses incurred in the suing out and execution of the writ of fi. fa. (Tc). In an early case in the Divorce Court where a petitioner, having failed in a suit for dissolution on the ground of his wife’s adultery with A ., instituted another suit of a similar nature on the ground of her adultery with B., the Court held the causes of action to be different, and refused an application to stay proceedings in the second suit until the costs of the former should have been paid (7); but this is no longer good law, for the Court of Appeal, in a case where the jury had disagreed, refused to allow the husband to proceed with a re-trial until he had paid the balance of the wife’s costs and given security for her costs in the new trial ( m ) . The Court of Appeal also in a case where a husband’s petition had been dismissed with costs, which costs had been taxed and remained partly unpaid, on the husband filing a second petition alleging adultery with different co-respondents, held that all proceedings should be stayed until the husband had paid all the wife’s costs in the first suit (n ) . The Court declined to entertain an application to con- demn a wife who had not appeared to defend a divorce suit in costs until she had received notice of such applica- tion (o) . Where a jury disagreed, the Court gave the wife (&) Keane v. Keane (1873), L. R., 3 P. & D. 52; 42 L. J. P. 12; 27 L. T. 768. (?) Yeatman v. Yeatman and Rummell (1869), 39 L. J. P. 37 ; 21 L. T. 647. (m) Kemp-Weleh v. Kemp- Welch and Crymes, (1910) P. 233, O. A. ( n ) Sanders v. Sanders, (1911) P. 101, C. A.; 104 L. T. 231; 80 L. J. P. 44. (o') Field v. Field and Fenton (1887), 13 P. D. 23; 58 L. T. 90. COSTS. 235 her full costs over and above the amount deposited in Court (p ) . Where a wife petitioner in a, divorce suit obtained a verdict from a jury on all the issues, the Court refused to allow her the costs of certain charges of cruelty made against her husband, which it was of opinion she had con- doned (q ) . To entitle an unsuccessful wife to secured costs it is essential that they should be the result of substantial allegations and reasonably incurred. Costs of allegations which have no prospect of success are incurred at the risk of the party making them (r) . In a case of judicial separation the Court, whilst ex- pressing a strong opinion that the wife’s charges against her husband were of a trumpery character, refused to deprive her of the usual order, although she had a small separate estate, in the absence of any suggestion of im- proper conduct against her solicitor (s) . Costs are in the discretion of the Court. And where the Court has exercised its discretion, the Court of Appeal is precluded from reviewing such decision (f). The Court in a divorce suit made an order to pay and secure certain sums for the wife’s costs;. Subsequently the husband became entitled to a legacy. The Court granted an injunction to restrain him from receiving the legacy until the orders as to costs were complied with (u ) . (p) Hurley v. Hurley and Menzi.es , (1891) P. 367; 61 L. J. P. 14; 65 L. T. 353. (?) Ash v. Ash, (1893) P. 222; 62 L. J. P. 97; 68 L. T. 500. See also Beer v. Beer (1906), 94 L. T. 704. (r) Kay v. Kay, (1904) P. 382; 73 L. J. P. 108; 91 L. T. 360. (s) Aires v. Aires (1892), 65 L. T. 859. See also as to solici- tor, Rogers v. Rogers (1865), 4 S. & T. 82; 34 L. J. P. 87; 12 L. T. 236. (1) Russell v. Russell, (1892) P. 152; 61 L. J. P. 45; 66 L, T. 436. See also Butler v. Butler (1890), 15 P. D. 126; 62 L. T. 477. (u) Gillet v. Gillet (1889), 14 P. D. 158; 58 L. J. P. 84; 61 L. T. 401; Bullus v. Bullus (1910), 102 L. T. 399. Wife’s costs. Full costs to wife. Wife allowed part of costs only. 1904. Costs of unfounded charges. Usual order for wife’s costs, though charges frivolous. 1892. No appeal as to costs. Injunction. Costs due. 23(3 COSTS. Wife’s oosts. Appointment of a receiver. Solicitor’s lien. Charge in favour of solicitor made before decree nisi on property- comprised in marriage settlement. Charging order in favour of solicitor on sum secured to wife. Injunction against part- ing with property in favour of solicitor refused. Solicitor’s lien on money paid in to meet wife’s costs. Where money was due to the wife for arrears of alimony and taxed costs, and her husband had a bill of sale on his furniture, the Court, on an ex parte application, appointed a receiver of the amount said to be standing in the husband’s nanae a,t his bank, the powers of such receiver to be limited until the next motion day, and 1 to the amount stated in the affidavits (x ) . The rules as ;to a solicitor’s lien are similar to those of the common law Courts (; y ). A charge made by a respondent, bef ore a decree nisi was pronounced, on his interest in the marriage settlement to secure to his solicitor his costs in a suit for dissolution of marriage was held valid (a) . In 1888 it was held by the Court of Appeal that a gross or annual sum 1 secured under the order of the Court to be paid by the husband under the provisions of 20 & 21 Viet, c. 85, s. 32, is “property” of the wife, and liable to be charged with her solicitor’s costs within the Attorneys and Solicitors Act ( a ) . A judicial separation having been pronounced at the suit of the wife, an interim injunction was obtained against the husband restraining him from dealing with certain of the property. Subsequently a reconciliation took place. The Court refused, on an application by the wife’s solici- tor, either to continue the injunction or appoint a receiver until the balance of his costs was paid (5). A wife, an unsuccessful respondent, moved for a new trial, and the motion was dismissed. The husband there- upon claimed to apply a sum of money he had paid in on ( x ) Angliss v. Angliss (1893), 1 E. 532; 69 L. T. 462. For a ease in which the “ usual order ” for the wife’s costs was refused, see Hough v. Hough (1894), 71 L. T. 703. (y) Bremner v. Bremner and Brett (1866), L. E., 1 P. & D. 954; 36 L. J. P. 11; 15 L. T. 297. ( z ) Wigney v. Wigney (1882), 7 P. D. 228; 51 L. J. P. 84; 37 L. T. 129. (a) Harrison v. Harrison (1888), 13 P. D. 180; 58 L. J. P. 28; 60 L. T. 39. (5) Hawes v. Hawes (1886), 57 L. T. 374. COSTS. 237 account of his wife’s costs to the payment of his costs incurred in and about the motion for a new trial. The Court refused to deprive the wife’s solicitor of the benefit of the money in Court in the absence of proof of miscon- duct on his part (c ) . The following are some of the decisions on the subject of a wife’s costs. Where a petitioner obtained leave to proceed in forma pcnuperis some time after the proceedings had been com- menced, and after an order had been made upon him for payment of his wife’s costs up to a certain amount, the Court ordered all the proceedings to be stayed till the order had been complied with ( d ) . A solicitor acting for a wife is not entitled to rely on his client’s instructions, but, to entitle him to look to the husband for payment of his costs, he must fairly investi- gate her defence, and satisfy himself as to its reason- ableness (e). Where a husband died during proceedings for divorce, the Court made an order for the wife’s costs against his executors (/) . Section 5 (d) of the Summary Jurisdiction (Married Women) Act, 1895, gives the justices exclusive jurisdic- tion over costs, and where they decline to make an order O) Hall v. Hall , (1891) P. 302; 60 L. J. P. 73; 65 L. T. 206. See further as to wife’s costs, Brown v. Brown and Robey (1869), 21 L. T. 181; Marget- son v. Margetson (1865), 35 L. J. P. 80, where it was held wife’s solicitor cannot charge for receiv- ing her alimony; Morphett v. Morphett (1869), L. P., 1 P. & D. 702; 38 L. J. P. 23; 19 L. T. 801, as to new trial on payment of wife’s costs; Allen v. Allen (1885), 10 P. D. 187; 54 L. J. P. 77, wife condemned in costs of motion for custody. (d) Joseph v. Joseph and Burn- hiU (1897), 76 L. T. 236. See also Kemp -Welch v. Kemp- W elch and Crymes, (1910) P. 233; 79 L. J. P. 92; 102 L. T. 787. ( e ) Walker v. Walker and Lawson (1897), 76 L, T. 234. (/) Cunningham v. Cunning- ham (1897), 77 L. T. 405. See also Townson v. Toumson and Bucknall (1898), 67 L. J. P. 68; 78 L. T. 54. Wife’s costs. 1897. Payment of wife’s costs after order to proceed in forma pauperis. Solicitor must satisfy himself as to wife’s defence. Husband dying pendente lite . Order for costs against his executors. Summary jurisdiction action will not 238 COSTS. Wife’s costs. lie at common law to recover wife’s costs refused by- justices. 1899. Restitution of conjugal rights. 1900. Summary Jurisdiction (Married Women) Act, 1895. Costs of Appeal. 1902. Two trials, costs of. 1902. Position of solicitor neglecting to get usual order for wife's costs. for costs under that section, the solicitor who acted for the wife cannot recover his costs in an action against the husband ( g ). Where a husband and wife were living apart under a deed of separation, under which the husband covenanted to pay the wife a weekly allowance in the payment of which he had been on one occasion three days later the Court held that this was not a sufficient breach of cove- nant to debar him from the right to set up the deed in answer to his wife’s petition for restitution, and refused to make the usual order for the wife’s costs ( h ) . When a wife has obtained a decision in her .favour from justices under the Summary Jurisdiction (Married Women) Act, 1895, she is entitled to her costs of an appeal to the Divisional Court, whether the result of such appeal he in her f avour or not (i ) . Where a wife has made no application for security, the Court will not allow her any costs of an abortive trial, but if she succeeds on a second trial, she will (unless under special circumstances) be entitled to her full costs of both trials (k) . If a solicitor does not follow the usual course and get an order against the husband for his costs whilst he is acting for the wife, he cannot do so after he has given notice that he has ceased to act for her. He will then be left to his remedy at common law (l ) . But where the wife changed her solicitor, the former (g) Cale v. James, (1897) 1 Q. B. 418; 66 L. J., Q. B. D. 249; 76 L. T. 119. (A) KunsJci v. Kunski (1899), 68 L. J. P. 18. (i) Medway v. Medway, (1900) P. 141; 69 L. J. P. 56; 82 L. T. 627. See also Earnshaw v. Earn- shaw, (1896) P. 160; 65 L. J. P. 89; 74 L. T. 560; Sirrell v. Sirrell, (1911) P. 38; 104 L. T. 79; 80 L. J. P. 8. ( [k ) W audley v. Waudley and Bowland, (1902) P. 85; 71 L. J. P. 43; 86 L. T. 123. (1) Nairne v. Nairne (1902), 71 L. J. P. 37; 85 L. T. 649. And see as to position of solicitor, where wife returns to cohabita- tion with her husband pending suit, Warwick v. Warioick (1901), 85 L. T. 173. COSTS. 239 solicitor was allowed to tax his costs in the Divorce Divi- sion, and the proceedings may be stayed until his costs have been dealt with (m ) . The Court may order the costs of the proceedings to he paid by the co-respondent where the adultery is established, although the petitioner may not have prayed for such costs (n ) . It is now so thoroughly settled as a matter of daily practice that a co-respondent is never condemned in costs if at the time he committed adultery with the respon- dent he did not know she was a married woman, or had reason to suspect it, that it would be superfluous to cite cases on the point. Where a co-respondent countercharged condonation and adultery against the petitioner, and the Court found that the co-respondent had committed adultery with the respondent without knowing she was married, but ac- quitted petitioner, the co-respondent was condemned in the costs caused by his countercharges only (a ) . In a case where the wife’s conduct had been profligate with the husband’s knowledge, before the adultery com- mitted with the co-respondent, the latter was not con- demned in costs (p >) . In a case where the Court thought the petitioner had made an improper claim for damages, the co-respondent was not condemned in costs (q ) . But costs have been given against a co-respondent where he well knew the respondent was a married woman, though there was some remissness on the part of the husband (r) . The exercise of the discretion as to costs ( m ) Jinks v. Jinks, (1911) P. 120; 104 L. T. 655. ( n ) Finlay v. Finlay and Rudall (1861), 30 L. J. P. 104. See also Goldsmith v. Gold- smith, Halrymple, Nicolls and Wooley (1862), 31 L. J. P. 163. (o) Howe v. Howe (1867), 15 W. R. 498. Qp) Boyd v. Boyd and Collins (1859), 1 S. & T. 562. (#) Manton v. Manton and Stevens (1865), 4 S. & T. 159; 34 L. J. P. 121. (r) Badcock v. Badcock and Chamberlain (1858), 1 S. & T. 188. Against co- respondent. Not necessary to ask for costs against co-respon- dent in prayer of petition. Co-respon- dent con- demned in part only of the costs. Wife pro- fligate. Co-respon- dent not condemned in costs. Discretion of Court. 240 COSTS. Against co- respondent. Mat. C. Act, 1857, s. 34. Costs of two trials. Co-respon- dent not condemned though knowing respondent was married. Misconduct of petitioner. Adultery with co-respondent condoned. vested in the Court by section 34 of Matrimonial Causes Act, 1857, depends upon the opinion of the Court as to the conduct of all the parties in each case; and even if it is proved that the co-respondent knew the respon- dent to be a married woman when the adultery was committed, it does not necessarily follow that he will be condemned in the whole or any part of the costs, although this is nearly always the case. So where a jury were unable to agree on a first trial, and on a second trial the petitioner obtained a verdict, the Court refused to condemn the co-respondent in the costs of the first trial (s) . And where a wife had lived apart from her husband for some years, and led an aban- doned life, the Court, notwithstanding that the co-respon- dent must have known that she was a married woman, refused to condemn him in costs ( t ). Where the Court was of opinion that the conduct of the petitioner had been such as to invite reasonable challenge, it condemned the co-respondent only in so much of the costs of the suit as had been incurred in proving the respondent’s adultery with him ( u ) . Where a husband petitioned for a divorce on the ground of adultery with the co-respondent, which he had condoned, the Court of Appeal held that the petition must be dis- missed, and the petitioner condemned in the co-respon- dent’s costs ( x ) . Where a husband had condoned adultery committed with a co-respondent which had been revived by adultery (s) Wood v. Wood and Stanger (1868), L. R., 1 P. & D. 467; 37 L. J. P. 25; 18 L. T. 110. if) Nelson v. Nelson and How- son (1868), L. R., 1 P. & D. 510. ( u ) Codrington v. Codring ton and Anderson (1865), 4 S. & T. 63; 34 L. J. P. 60. See also Bremner v. Bremner and Brett (1864), 3 S. & T. 378; 33 L. J. P. 202; 10 L. T. 99. ( x ) Bernstein v. Bernstein, Sampson and Turner , (1892) P. 375; 62 L. J. P. 16; 67 L. T. 52. COSTS. 241 committed by another person, costs were not given against the co-respondent whose adultery was condoned ( y ) . Where the adultery of the wife was proved, but the petition was dismissed on account of the husband’s adultery, the co-respondent was not condemned in costs, nor allowed any (z ) . Where a decree nisi was afterwards rescinded on the ground of the petitioner’s adultery committed subsequent to the date of the decree, an order condemning the co- respondent in costs was not rescinded (a ) . Where a co-respondent, convicted of adultery, succeeded in proving incestuous adultery against the husband, it was held that he was entitled to be paid the costs of the issue against the husband on which lie had succeeded ( b ). And where the petitioner had condoned his wif e’s adultery with the co-respondent, and had connived at her adultery with another person, the Court ordered the petitioner to pay the costs of the respondent and of the co-respondent (e). But where the jury found that the respondent had been guilty of adultery, but that there was not sufficient evidence against the co-respondent, though his conduct had been such as to lead to a reasonable suspicion in the mind of the petitioner that he had been guilty of adultery, the Court refused to allow him his costs ( d ) . And where there had been an improper intimacy (not amounting to adultery) between the co-respondent and the respondent, the co-respondent was ordered to pay his own costs, though Against co- respondent. Petition dismissed on ground of husband’s adultery. Petitioner guilty of adultery after decree nisi. When co- respondent entitled to. Petitioner guilty of incestuous adultery. Condonation and con- nivance. Co-respon- dent guilty of indiscreet familiarity only. (y) Norris v. Norris, Lawson and Mason (1861), 4 S. & T. 237; 30 L. J. P. 111. ( z ) Seddon v. Seddon and Boyle (1862), 2 S. & T. 640; 31 L. J. P. 101 ; 7 It. T. 253 ; Brem- ner v. Bremner (see previous page). ( a ) Hulse v. Hulse and Tavernor (Queen’s Proctor in- tervening) (1871), L. R., 2 P. & D.M.C. D. 357; 41 L. J. P. 19; 25 L, T. 764. (&) Conradi v. Conradi and Flash-man (1866), L. R., 1 P. & D. 63; 35 L. J. P. 49; 14 L. T. 170. (c) Adams v. Adams and Colter (1867), L. R., 1 P. & D. 333; 36 L. J. P. 62; 16 L. T. 69. ( d ) Robinson v. Robinson and Gamble (1860), 32 L. J. P. 210. 16 242 COSTS. Against co- respondent. Application to dismiss co- respondent. Payment of costs. Costs of altering marriage settlement. Partial order for costs. Petitioner guilty of adultery, co-respondent partially condemned in costs. Costs of inquiry before registrar on apportion- ment of damages. the petition was dismissed (e). When a petition is dis- missed the Court does not always order the petitioner to pay the co-respondent’s costs; the order it makes as to costs will depend upon the special circumstances of each particular case (/) . When in a suit for dissolution the co-respondent is con- demned in costs, he is liable for the costs of the proceedings to obtain alimony, also for the costs of all parties, including the trustees, incurred in and incidental to a petition to vary the settlements (g ') . But if part of such an applica- tion fails, the costs of that part ought not to be thrown on the co-respondent (Ji ) . Where a petition was dismissed on the ground of the adultery of the petitioner, but at the same time an order was made condemning the co-respondent in the costs incurred by the petitioner in proving his adultery with the respondent, the Court held that this order com- prised all the expenses incidental to the filing and prosecu- tion of the petition so far as they related to the adultery of the co-respondent (i ) . A co-respondent condemned in costs is liable for costs of and incidental to proceedings before registrar for apportionment of damages (1c ) . A jury found the co-respondent guilty of adultery with (e) W inscow, v. Wins com and Plowden (1864), 3 S. & T. 380; 33 L. J. P. 45; 10 L. T. 100. (/) For cases where the Court ordered the petitioner to pay the co-respondent’s costs on the peti- tion being dismissed, see Whit- more v. Whitmore and Brettell (1865), L. R., 1 P. & D. 25; 35 L. J. P. 32; 13 L. T. 610; and for cases where such order was refused, see Bancroft v. Ban- croft and Rumney (1865), 34 L. J. P. 144; Wight v. Wight and Field (1867), L. R., 1 P. & D. 368; 36 L. J. P. 129; 16 L. T. 300; West v. West and Parker (1870), L. R., 2 P. & D. 196; 40 L. J. P. 11; 23 L. T. 786. (g) Gill v. Gill and Hogg (1863), 3 S. & T. 359; 33 L. J. P. 43; 10 L. T. 137; Smithe v. Smithe and Roupell (1868), L. R., 1P.&D. 592. ( h ) Stone v. Stone (1864), 10 L. T. 140. ( i ) Baker v. Baker and Grigg (1867), 36 L. J. P. 119. (k) Irwin v. Irwin and Layard (1890), 59 L. J. P. 53; 62 L. T. 612. COSTS. 243 the l^espondent. The issue of 1 the respondent’s adultery being for the Court, the Court, after examining her, arrived at the conclusion that she had not been guilty of adultery, she being a person of weak intellect, and the connection having been against her will, but condemned the co-respondent in costs ( l ). Condonation by a husband after decree nisi is no reason for relieving the co-respondent of his liability for costs (m ) . The rule is, that where a co-respondent does not know that the respondent is a married woman he will not be condemned in costs; and where a co-respondent discovered a week after he Commenced an intimacy with the re- spondent that she was a married woman, but nevertheless continued to cohabit with her, the Court, taking all the circumstances of the case into consideration, refused to condemn him in costs (n ) ; but where a co-respondent denied that he knew the respondent was married on their first acquaintance, but admitted that he became aware of the fact within a fortnight, the Court, being of opinion that practically he knew the fact from the first, condemned him in costs (o) . Where a foreign co-respondent appeared in the first instance unconditionally, and afterwards successfully dis- puted the jurisdiction of the Court, the Court, as he had not availed himself of the earliest opportunity of taking exception to the jurisdiction, gave him only his costs of ( l ) Long v. Long and Johnson (1890), 15 P. D. 218; 60 L. J. P. 27. ( m ) Hyman v. Hyman and Goldman (King’s Proctor show- ing cause), (1904) P. 403; 73 L. J. P. 106; 91 I*. T. 361. ( n ) Learmonth v. Learmonth and Austin (1889), 59 L. J. P. 14; 62 L. T. 608. See further as to co-respondent, Newby v. New- by and White (1897), 77 L. T. 142; Robinson v. Robinson (1898), 78 L. T. 391; Brown v. Brown and Robey (1869), 21 L. T. 181. (o) Bilby v. Bilby and Har- rop, (1902) P. 8; 71 L. J. P. 31; 86 L. T. 123. 16 ( 2 ) Against co- respondent. Wife acquitted of adultery, co-respondent found guilty notwith- standing. 1904 . Condonation by husband. Co-respon- dent guilty of adultery not condemned in costs. 1902 . Co-respon- dent admitted knowing respondent was married within a fort- night of first acquaintance. Co-respon- dent success- fully pleading to j urisdic- tion, delay in doing so. 2 14 COSTS. Against co- respondent. Scotch co- respondent. Co-respondent bankrupt. 1901. Cross suits. Order for consolidation. Position of co- respondent. appearance (p); and where a foreign co-respondent entered an absolute appearance and then applied to be dismissed the suit, the Court dismissed him but refused to give him his costs, as he had entered an absolute appear- ance (g) . But where a Scotch co-respondent applied to be dis- missed from the suit, his application was refused with costs (r) . Previously to the decision in this case, a Scotch or Irish co-respondent had always been on the same footing as a foreigner . After a decree for a dissolution of marriage, an order made by the Court upon the co-respondent to pay the petitioner’s costs is not a “final judgment” within the Bankruptcy Act, 1883; a bankruptcy notice cannot there- fore be issued against the co-respondent in respect of such an order ( s ) . It was held by the Court of Appeal, reversing 1 the decision of the Court below, that an order consolidating a wife’s petition for a judicial separation and her husband’s petition for divorce against her, was not a consolidation within the strict meaning of the term, so as to make the two suits one proceeding, and that the Court had no juris- diction either under the Mat. C. Act, 1857, s. 34, or under the Judicature Act, 1890, s. 5, to order the co- respondent to pay any part of the costs of the wife’s suit to which he was not a party ( t ) . (p) Grange v. Grange and Arendt, (1892) P. 245; 61 L. J. P. 125; 67 L. T. 360. (, q ) Levy v. Levy and de Ror- nance, (1908) P. 256; 77 L. J. P. 95; 99 L. T. 212. See also Baker v. Baker and Dwyer, (1908) P. 257; 77 L. J. P. 96; 99 L, T. 313. (r) Fairfax v. Fairfax and de la Cruz (1909), 99 L. T. 892; Rayment v. Rayment and Stuart , (1910) P. 271; 103 L. T. 430; 79 Li. J. P. 115; Chapman v. Chapman and Buist, (1910) P. 271; 103 L. T. 430; 79 L. J. P. 115. ( s ) Dale, Ex parte, Binstead, In re, (1893) 1 Q. B. 199; 62 L. J., Q. B. 207; 68 L, T. 31. (0 Forbes-Smith v. Forbes - Smith and Chadwick, (1901) P. 258; 70 L. J. P. 61; 84 L. T. 789. COSTS. 245 It has been for many years the practice of the Court to allow her costs to a wife petitioner successfully suing in forma pauperis ( u ) ; but it has been held by the Court of Appeal that the rule laid down in Carson v. Picker s- gill & Sons (x) that a successful plaintiff suing in forma pauperis in an action tried before a judge and jury is entitled, upon taxation, as against the defendant, to costs out of pocket only, applies in the case of a pauper peti- tioner for a divorce against the co-respondent (y) . By section 2 of the Matrimonial Causes Act, 1878 (41 Viet. c. 19), “ Where the Queen's Proctor or any other person shall intervene or show cause against a decree nisi in any suit or proceeding for divorce or for nullity of marriage, the Court may make such order as to the costs of the Queen’s Proctor, or of any other person who shall intervene or show cause as aforesaid, or of all and every party or parties thereto, occasioned by such intervention or showing cause as aforesaid, as may seem just; and the Queen’s Proctor, any other person as aforesaid, and such party or parties shall be entitled to recover such, costs in like manner as in other cases: Provided that the Treasury may, if it shall think fit, order any costs which the Queen’s Proctor shall, by any order of the Court made under this section, pay to the said party or parties, to be deemed to be part of the expenses of his office.” The King’s Proctor is now condemned in costs when- ever the Court deems that his intervention was uncalled for. For cases on this question, see below ( z ). O) Aford v. Afford (1861), 2 S. & T. 337; 30 L. J. P. 174; 5 L. T. 138. (x) (1885), 14 Q. B. D. 859; 54 L. J., Q. B. 484; 52 L. T. 950. (y) Richardson v. Richardson, <1895) P. 346; 64 L. J. P. 119; 73 L. T. 135. (z) Collins v. Collins and Smith (1881), 44 L. T. 31 ; Vivian v. Vivian and Waterford (Leslie intervening 1 ) (1870), L. R., 2 P. & D. 100; 39 L. J. P. 54; 23 L. T. 267 ; Barnes v. Barnes and Grimwade (Queen’s Proctor in- Against co- respondent. Costs of parties suing in form A 'pauperis. Against co- respondent. Two kinds of intervention : 1st, “ Any person ” ; 2nd, Queen’s Proctor. Costs. Mat. C. Act, 1878, s. 2. King’s Proctor may be con- demned in. 246 COSTS. Intervention by Queen’s Proctor and other inter- veners. Costs. Co-respon- dent. The King’s Proctor stands in exactly the same position as to costs as any other intervener, and there is no practice not to order the King’s Proctor to pay the costs of an unsuccessful intervention ( a ) . In Blackball v. Blackball and Clarke (Queen’s Proctor intervening) (&), Butt, J.,held that the Court had no right either under section 2 of the Matrimonial Causes Act, 1878, or under section 34 of the Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), which gives a general power to the Court to condemn a co-respondent, where the fact of his adultery has been established, in “ tbe whole or any part of tbe casts of tbe proceedings ,” to condemn the co-respondent in the costs arising out of an intervention of the Queen’s Proctor. Where a person charged by the King’s Proctor with having committed adultery with the petitioner, inter- vened, such person, as well as the petitioner, was upon the dismissal of the petition condemned in the costs of the King’s Proctor (c) . tervening) (1867), L. R., 1 P. & D. 505; 37 L. J. P. 4; 17 L. T. 286; 16 W. R. 281; Wilson v. Wilson (1866), L. R., 1 P. & D. 180; 14 L. T. 674; Bowen v. Boioen and Evans (Queen’s Proc- tor intervening) (1864), 3 S;. & T. 530; 33 L. J. P. 129; Joyce v. Joyce (Queen’s Proctor interven- ing) (1864), 33 L. J. P. 200; Lautour v. Queen’s Proctor (1864), 33 L. J. P. 89; 10 H. L. C. 685; 10 L. T. 611; Cox v. Cox (1861), 2 S. & T. 306; 30 L. J. P. 255; 4 Li. T. 450; For- ster v. Forster and Berridge (Graham intervening) (1863), 3 S. & T. 151; 32 L. J. P. 206; 9 L. T. 148; Gladstone v. Glad- stone (1875), L. R., 3 P. & D. 260; 44 L. J. P. 46; 32 L. T. 404; Tomkins v. Tomkins (Queen’s Proctor intervening) (1872), 20 W. R. 497. ( a ) W estcott v. Westcott (King’s Proctor showing cause), (1908) P. 250; 77 L. J. P. 102; 99 L. T. 310; Higgins v. Hig- gins (King’s Proctor showing cause), (1910) P. 1; 79 L. J. P. 10; Carter v. Carter (King’s Proctor showing cause), (1910) P. 4; 79 L. J. P. 12; 101 L. T. 812; Higgins v. King’s Proctor, (1910) P. 151, G. A.; 79 L. J. P. 37, O. A.; 102 L. T. 259; King’s Proctor v. Carter, (1910) P. 151, C. A.; 79 L. J. P. 37, O. A.; 102 L. T. 259. (&) (1888), 13 P. D. 94; 57 L. J. P. 60; 59 L. T. 151. (c) Davison v. Davison (King’s COSTS. 247 Where a decree nisi is rescinded it is rescinded for all purposes, and that part of it condemning the co-respondent in costs generally falls with it (d ) ; hut see Hyman v . Hyman and Goldman (King’s Proctor showing cause) (e) and Quartermaine v. Quartermaine and Glenister (/), where the co-respondent still had to pay the costs. Where the Queen’s Proctor intervened, and the peti- tioner filed no answer to the Queen’s Proctor’s pleas, the decree was rescinded, including that portion of it con- demning the co-respondent in costs (g ) . In a case where the Queen’s Proctor had intervened, a jury found that both husband and wife had been guilty of collusion. The husband had paid into Court 140 1., to meet the wife’s costs. The Court had refused (and the Court of Appeal had confirmed this decision) to allow any part of the sum to be paid out to the wife or her solicitors. The Court, on application of the Queen’s Proctor, ordered the whole sum of 140/. to be paid out to him in part payment of his costs (h ) . A wife is not entitled to have money paid into Court by her husband to meet her costs paid out to her pending the King’s Proctor’s intervention (i ) . It is not the practice of the Court to order a husband toi Decree nisi rescinded. Petitioner filing no answer to Queen’s Proctor’s intervention. Costs of Queen’s Proctor. King’s Proctor’s costs. Refusal to pay- out money- deposited for costs pending intervention. Security- for costs. Proctor showing cause ; Mont- gomerie intervening), (1909) P. 308; 79 L. J. P. 9. (d) Hechler v. Heckler and Bennett (1888), 58 L. J. P. 27. See also Hyman v. Hyman and Goldman (King’s Proctor show- ing cause), (1904) P. 403; 73 L. J. P. 106; 91 L. T. 361. See also Ravenscroft v. Ravenscroft and Smith (Queen’s Proctor in- tervening) (1872), L. R., 2 P. & D. 376; 41 L. J. P. 28; 26 L. T. 265; Youell v. Youell, Ter- rass and Burleigh (Queen’s Proc- tor intervening) (1875), 33 L. T. 578. (e) (1904) P. 403; 73 L. J. P. 106; 91 L. T. 361. (/) (1911) P. 180; 105 L. T. R. 80. (g) Hechler v. Hechler, su'pra. (Ji) Butler v. Butler (1890), 15 P. D. 161; 59 L. J. P. 86; 63 L. T. 260. (*) Butler v. Butler (1889), 14 P. D. 160; 58 L. J. P. 71. 248 COSTS. Petitioner and co- respondent charged with collusion. 1898. Pauper cause. 1903. Other inter- vener’s costs. House of Lords making no order as to costs. Appeal to House of Lords. Order for costs after decree absolute. give security for his wife’s costs incidental to an interven- tion of the King’s Proctor ( [Jc ). Where the Queen’s Proctor intervened, and established a charge of collusion against both the petitioner and co-respondent, the Court condemned the co-respondent in the costs of the Queen’s Proctor’s intervention, although he did not appear ( l ) . The costs of the Queen’s Proctor’s intervention are entirely in the discretion of the Court, and an unsuccessful pauper litigant is liable to an order condemning him in the full costs (m ) . Where a wife petitioner charged her husband with adultery with a certain lady, and the husband would not deny the charge, the lady in question obtained leave to intervene and succeeded in negativing the charges against her: the Court, holding that the intervener ought to be put in the best possible position to obtain the costs which she had properly incurred in defending herself, made an order against both the petitioner and respondent to pay her costs ( n ) . On appeal to the House of Lords a sentence of the Court, dismissing a wife’s petition for a decree of nullity of marriage, was reversed, and the House declared the marriage null, but made no order as to costs (o). It has been held that, in a suit for dissolution of marriage, it would not be acting within the spirit of section 51 of the Matrimonial Causes Act, 1857, to con- demn a party in the costs of the proceedings after the decree has been made absolute (p ) . (Jc) Butler v. Butler (1890), 15 P. D. 32; 59 L. J. P. 30; 62 L. T. 477. ( l ) Taplen v. Taplen and Cowen (Queen’s Proctor inter- vening), (1891) P. 283; 60 L. J. P. 88; 64 L. T. 870. (m) White v. White (Queen’s Proctor showing cause), (1898) P. 124; 67 L. J. P. 63. (n) Wade v. Wade (Brooke intervening), (1903) P. 16; 72 L. J. P. 1; 87 L. T. 751. (o) L. v. H. (1867), L. R., 1 P. & D. 293; 36 L. J. P. 76. See also Begg v. Begg (1890), 15 App. Cas. 170. (p) Wait v. Wait and Flower COSTS. 219 Where in a petition for dissolution of marriage the husband, who was an uncertificated bankrupt, claimed damages; upon application by the oo-respondent the Court held, that unless the claim for damages was with- drawn the petitioner must give security for the costs of the action ( q ) . But in a later case it was hold that, in spite of the above decision, a petitioner who was an un- discharged bankrupt might claim damages, without being compelled to give security for the co-respondent’s costs (r) . On a petition for variation of settlements, the Court refused to allow the petitioner’s costs to be paid out of the capital of the settlement (s ) . But where at the time of an application for variation of settlements a wife was indebted to her solicitor in the sum of 49/. 16s. 9 d. for costs, and there appeared po chance of recovering this sum from the husband, the Court allowed it to be paid out of the corpus of the settled property (/) . In a nullity suit where the Court ordered both the husband and wife’s settled funds to be re-conveyed to them, it further ordered that the costs of both the wife and the trustees be paid out of the husband’s fund (u). Where the Court, before final decree, directs an inquiry as to a wife’s property with the view of ordering a settle- ment to be made, it will also direct the husband to give security for costs ( x ). <1871), L. R., 2 P. & D. 228; 40 L. J. P. 30; 24 L. T. 846. (#) Smith v. Smith and Path (1882), 7 P. D. 227; 47 L. T. 355. ( [r ) Blackett v. Blackett and Frail, (1902) P. 170; 71 L. J. P. 69; 86 L. T. 669. (s) Ponsonby v. Ponsonby (1884), 9 P. D. 122; 53 L. J. P. 112; 51 L. T. 174. For a later case relating to the costs of trustees of a marriage settlement, where two out of three trustees only appeared, see Storer v. Storer (1894), 71 L. T. 704. (0 Ilipwell y. Hipwell, (1892) P. 147; 61 L. J. P. 84; 67 L, T. 396. See also Hamilton v. Hamilton and Pralormo (1893), 68 L. T. 467 ; Arkwright v. Ark- wright (1895), 73 L. T. 287. ( u ) Attvjood ( otherwise Pome- roy ) v. Attwood, (1903) P. 7; 71 L. J. P. 129; 87 L. T. 750. (x) Midwinter v. Midwinter, (1892) P. 28; 61 L. J. P. 1 ; 65 L. T. 438. Petitioner an uncertificated bankrupt. Variation of settlements. Costs allowed to be paid out of settled property. Wife’s costs. Variation of settlements, nullity suit. Security for costs. 250 COSTS. New trial. Security for costs. Husband excused from payment of wife’s costs. Legitimacy declaration costs. Compromise of suit. Costs of carrying into effect. Compromise, costs of. No security for costs need be given on a motion to the Court of Appeal for a new trial of a divorce case that has been tried by a jury ( y ). Where a wife refused to comply with a decree for resti- tution, the Court decided that it had no power, under the Matrimonial Causes Act, 1884 (47 & 48 Viet. c. 68), s. -3, to order a settlement of the wife’s property, she being restrained from anticipation; but it refused under the cir- cumstances to order the petitioner to pay the respondent’s costs (z) . In proceedings under the Legitimacy Declaration Act, the Court has jurisdiction toi order a person who has been cited, and who has appeared and opposed the petition, to pay the costs of the petitioner (a ) . The parties to a suit for judicial separation made an agreement for the settlement of it, providing for the execution of a separation deed, fhat the respondent should pay the costs of the petitioner’s suit, and that the agree- ment might be made a rule of Court. The Court held that, as the agreement was enforceable by specific per- formance, or in any Division of the High Court of which it might be made a rule, the carrying out of it was not a step in the suit, and the Court ha^d theref ore no jurisdiction over the costs of the deed, and this view was affirmed on appeal (bj . See also Part II., tit. “Practice as to Costs” (p. 540). ( y ) Riclcaby v. RicTcaby and Swift, (1901) P. 134; 70 L. J. P. 24; 84 L. T. 182. (z) Michell v. Michell, (1891) P. 305; and see further as to costs of variation of settlements generally, Carstairs v. Carstairs, Dickenson and Others (1864), 3 S. & T. 538; 33 L. J. P. 170; 10 L. T. 696; Noel v. Noel (1885), 10 P. D. 179; 54 L. J. P. 73; Wigneyv. Wigney (1882), 7 P. D. 228; 51 L. J. P. 84; 37 L. T. 129. (a) Bain v. Att.-Gen. (Usher intervening), (1892) P. 261 ; 61 L. J. P. 135; 67 L. T. 447. ( b ) Lancaster v. Lancaster , (1896) P. 118; 65 L. J. P. 34; 74 L. T. 64. See also Smythe v. Smythe (1887), 18 Q. B. D. 544; 56 L. J., Q. B. 217; 56 L. T. 197. EVIDENCE. 251 CHAPTER, XVII. EVIDENCE. In the Ecclesiastical Courts the evidence was almost always taken by means of written depositions verified by affidavit; for, although for some few years before the passing of the Matrimonial Causes Act, 1857, there was a statute in force enabling evidence in these Courts to be taken viva voce, this course was rarely adopted. But by section 46 of the Matrimonial Causes Act, 1857, it was enacted that: — “ Subject to such rules and regulations as may be established as herein provided, the witnesses in all pro- ceedings before the Court, where their attendance can be had, shall be sworn and examined 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 1 the Court, be subject to be cross- examined 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” (a). At the time of the passing of the Matrimonial Causes Act, 1857, the parties to a matrimonial suit were not com- ( a ) As to affidavits and com- other matters of practice, see missions and examinations of post. Part II. p. 604, tit. “Evi- witnesses, discovery and inspec- dence.” tion, hearing cases in camera , and In the Ecc. Courts, evidence, how taken. Mode of taking evidence. 20 & 21 Viet, c. 85, s. 46. 252 EVIDENCE, Parties to suit not competent witnesses at time of passing M. C. Act, 1857. Examination of petitioner under order of the Court. Mat. C. Act, 1859, s. 6. Both husband and wife competent, &c. to give evidence as to cruelty and desertion. Evidence Act, 1869 (32 & 33 Viet. c. 68), s. 3. Parties and their husbands and wives to he witnesses in suits for adultery. petent witnesses as to adultery, cruelty, desertion, or indeed any other matrimonial offence. The first step taken by the Legislature in the direction of removing this disability was by section 43 of the Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), which provides that: — “ The Court may, if it shall think fit, order the attend- ance of the petitioner, and may examine him or her, or permit him or her to be examined or cross-examined 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 ” (5) . In the Matrimonial Causes Act, 1859 (22 & 23 Viet, c. 61), the Legislature went a step further, and section 6 of' that Act provides that, “ On any petition presented by a wife, praying 1 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 apd wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion.’’ Finally, all restrictions on the competence of parties to give their evidence on oath in matrimonial causes were removed, and by virtue of section 3 of the Evidence Further Amendment Act, 1869 (32 & 33 Viet. c. 68), “ The parties to any proceeding instituted in consequence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in such proceeding: Provided that no witness 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 have (5) This section has never been to the passing of the Evidence repealed. An order compelling Act, 1869, in the case of Ross v. the attendance of the petitioner Ross (1869), L. B.., 1 P. & D. was made in a suit for judicial 629; 38 L. J. P. 33; 20 L. T. separation about six months prior 232. EVIDENCE. 203 already given evidence in the same proceeding in disproof of his or her alleged adultery ” (0). The general rules and principles that apply to evidence in actions in other Courts apply equally to matrimonial actions tried in the Probate, Divorce and Admiralty Divi- sion, and will be found in treatises on the law of evidence, such as “Taylor on Evidence,” “Best on Evidence,” “ B/Oscoe’s Nisi Prius,” and the like. As a rule, in matrimonial causes the burden of proof is on the petitioner, who has the right to begin. But where a wife, in answer to a petition for judicial separation, alleged that the marriage was void on the ground of the husband’s impotence, the Court held that this was merely a traverse and that therefore the husband had the right to begin (d ) . Where a wife petitioned for restitution, and the hus- band, having first in his answer countercharged adultery, subsequently filed a cross-petition for divorce, and the suits were consolidated: the Court held the burden of proof was on him, and he had the right to begin (e) . Where the petitioner began on the Queen’s Proctor’s intervention, the Court held that the Queen’s Proctor had the right to reply (/) ; and the King’s Proctor is entitled to examine and cross-examine all the witnesses called by the petitioner and respondent (g) . Where the King’s Proctor and other interveners appear in the same suit, both the King’s Proctor and the other (the petitioner, had committed fornication, but full particulars of the charge had been given, and the petitioner had not come forward to deny it; the Court held there was sufficient evidence of identity (a). Any evidence is admissible in a suit for nullity which (m) See also Williams v. Wil- liams and Padfield (1865), L. R., 1 P. & D. 29; 35 L. J. P. 8; 13 L. T. 610, where a husband obtained a divorce solely on the admissions of his wife; and Le Marckant v. Le Marchant and Radcliff (1876), 45 L. J. P. 43; 34 L. T. 367, where the divorce was obtained on the admissions of the wife and the co-respon- dent. ( n ) For cases in which the wife’s confessions have been used in evi- dence against the party charged, see Payne v. Payne, Rodway and Eddels (1888), 60 L. T. 238; Gill v. Gill (1889), 60 L. T. 712; Cornish v. Cornish (1890), 15 P. D. 131; 59 L. J. P. 84; 62 L. T. 667 ; Bagot v. Bagot (1890), 62 L. T. 612. (o) j Guise v. Hulse and Taver- nor (Queen’s Proctor interven- ing) (1871), 4 S, & T. 232 ; L. R., 2 P. & D. 357; 41 L. J. P. 19; 25 L. T. 764. EVIDENCE. 273 tends to throw light on the case set up by the petitioner; evidence is, therefore, admissible as to disputes between the petitioner and the respondent during their cohabita- tion, although the only questions in dispute are the re- spondent’s impotency and the consummation of the mar- riage (p). By Order XXXVII., Rule 35, of the Rules of the Supreme Court, “Any person who would under the cir- cumstances alleged by him to exist become entitled, upon the happening of any future event, to any honour, title, dignity, or office, or to any estate or interest in any pro- perty, real or personal, the right or claim to which cannot by him be brought to trial before the happening of such event, may commence an action to perpetuate any testi- mony which may be material for establishing such right or claim.” In Jackman v. Jackman and Willoughby (q) it was held that a petitioner might, as part of the case opened by him, give his own evidence and call his witnesses in answer to countercharges made by the respondent against him, or that he might in the alternative reserve his answer to the charge until the respondent’s witnesses in support of it had been examined, but that he was not entitled to divide his case by giving his own evidence in the open- ing, and afterwards calling his witnesses in reply to the respondent’s case. Where some evidence was called to show that the respondent and co-respondent had made admissions in the presence of several persons, and that the landlady of the house had made charges against the co-respondent, to which he made no reply: the Court adjourned the case that the landlady might be called (r) . O) X. V. Y. (1865), 34 L. J. L. J. P. 72; 60 L. T. 936. P. 81. (r) White v. White and (?) (1889), 14 P. D. 62; 58 Jerome (1890), 62 L. T. 663. 18 Evidence. Suit to perpetuate testimony. Ord. XXXVII. r, 35. Rebutting evidence. Admissions of respondent and co- respondent in presence of third persons. D.M.C. 274 EVIDENCE. Incestuous adultery. Going behind certificate of conviction. Application for settlement or allowance in suit for restitution : evidence as to conduct of petitioner to respondent during co- habitation. Re-hearing evidence at former trial. Decree for dissolution in previous suit. Confidential communica- tions by husband to wife, and vice versa. A criminal Court had acquitted a respondent on a charge of carnally knowing his own daughter, but con- victed him of the attempt. The Divorce Court, notwith- standing the certificate of conviction, allowed evidence to be given to prove that incestuous adultery had, in fact, taken place (s) . On an application for a settlement or allowance made in an undefended suit for restitution, it is competent for the applicant to tender evidence as to the conduct of the other party during cohabitation (t). Upon a re-hearing, the Court ref used to take notice of evidence given at the former hearing, and refused to pro- nounce a decree unless a witness who negatived adultery was subpoenaed (u ) . A respondent in a suit for dissolution of marriage had been co-respondent in a previous suit. The decree in the former suit stated that the jury found the respondent had committed adultery with the co-respondent, and that the latter had been condemned in costs. As, however, the decree did not in terms state that there had been any finding that the co-respondent had committed adultery with the respondent, the Court, in the subsequent suit, refused to accept it as evidence that he had previously committed adultery (x ) . By section 3 of the Evidence Amendment Act, 1853 (16 & 17 Viet. c. 83), “No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband (s) Virgo v. Virgo (1893), 69 L. T. 460. (0 Swift v. Swift , (1891) P. 129; 60 L. J. P. 14; 63 L. T. 711. ( u ) Chambers v. Chambers (1889), 60 L. T. 514. (#) Ruck v. Ruck, (1896) P. 152; 65 L. J. P. 87. And see as to using the judges’ notes in a matrimonial suit before the House of Lords on an Irish Divorce Bill, Griffin's Divorce Bill , (1896) A. C. 133; Sinclair's Divorce Bill, (1897) A. C. 469. EVIDENCE. 275 during the marriage.” Therefore, where a wife petitioner called as a witness the husband of a lady with whom she alleged that her husband had committed adultery, the Court under the above statute refused to allow him to be asked any questions as to certain statements alleged to have been made by his wife to him, or to compel him to produce a certain letter alleged to have been written to him by her (y ) . It has been held that, upon a second trial of the same issue, the judge’s notes of deceased witnesses who were examined on the first trial are not admissible in evidence, except by consent {z ) . The Court will grant a new trial or re-hearing where fresh evidence has been obtained since the original trial or hearing, if it is of opinion that such evidence would lead to a different result (a ) . Fresh evidence will not, as a general rule, be received on appeal from justices under the Summary Jurisdiction Act, 1895. The note taken by the justices’ clerk will be accepted as a prima facie complete statement of what took place. If such note is incomplete, it may be supplemented by an affidavit as to what took place in the Court below, but not as to other facts (5). Fresh evidence means evidence which has not come to the knowledge of the party wishing to call it, at the time of the hearing, or evidence which he could not then have called (c) . It is essential that clerks to justices should take careful notes of the evidence, or depositions, and of the justices’ (y) Cowley v. Cowley (1897), L. J., N. C. 49. (z) Conradi v. Conradi, Wor- rall and Way (the Queen’s Proc- tor intervening) (1868), L. R., 1 P. & D. 514; 37 L. J. P. 55. («) TaAjlor v. Taylor and Barg (1899), 68 L. J. P. 116; 81 L. T. 494. (5) Snape v. Snape (1898), 62 J. P. 153. (c) Johnson v. Johnson, (1900) P. 19; 69 L. J. P. 13; 81 L. T. 791. 18 (2) Second trial. Judge’s notes — deceased witnesses. Fresh evidence. Re-hearing. Appeal from justices. Fresh evidence. Depositions in Court below. 276 EVIDENCE. Evidence of means. reasons for arriving at their decision. In case of appeal correct copies of such notes should he furnished to the judges of the Divisional Court (d). It was held on appeal from justices that an offer made by the husband to allow his wife 11. a week was some evidence of means (e). See further as to “Evidence,” Part II., tit. “Evidence” (p. 604). ( d ) Robinson v. Robinson, (1898) P. 153; 67 L. J. P. 77; 78 L. T. 392; Cobb v. Cobb, (1900) P. 145; 69 L. J. P. 52; 82 L. T. 626. See also Wenham v. Wenham (1906), 95 L. T. 548. Two copies of the notes should be supplied for the use of the judge: Walton v. Walton , (1900) P. 147; 69 L. J. P. 54; 82 L. T. 627. (e) Walton v. Walton (1900), 64 J. P. 264. A TABLE OF KINDRED AND AFFINITY (a). (i.e., aunt by blood). | ( uncle’s wife , i.e., aunt by affinity). | {wife’s aunt). A man may not marry his — 1. Grandmother. 2. Grandfather’s wife. 3. Wife’s grandmother. 4. Father’s sister 5. Mother’s sister 6. Father’s brother’s wife 7. Mother’s brother’s wife 8. Wife’s father’s sister 9. Wife’s mother’s sister 10. Mother. 11. Step-mother. 12. Wife’s mother {motlier-in-law). 13. Daughter. 14. Wife’s daughter {step -daughter). 15. Son’s wife {daughter-in-law). 16. Sister. 17. } (fW(r4 ,. M . 18. Brother s wife 1 19. Son’s daughter 20. Daughter’s daughter 21. Son’s son’s wife {son’s daughter-in-law). 22. Daughter’s son’s wife {daughter's daughter-in-law ). 23. Wife’s son’s daughter {step-son's daughter). 24. Wife’s daughter’s daughter {step -daughter' s daughter). 25. Brother’s daughter {granddaughter). 26. Sister’s daughter 27. Brother’s son’s wife 28. Sister’s son’s wife 29. Wife’s brother’s daughter {niece). | {nephew's wife). {niece by affinity). {a) From Hammick’s “Marriage Laws of England,” second edition, pp. 35, 36. (5) This has been altered by the Deceased Wife’s Sister’s Marriage Act, 1907 (7 Edw. 7, c. 47), which legalized marriage with a deceased wife’s sister — including a sister of the half-blood. 278 A TABLE OF KINDRED AND AFFINITY. {uncle by blood). {aunt’s husband , i.e., uncle by affinity ) . {husband’s uncle). A woman may not marry her- 1. Grandfather. 2. Grandmother’s husband 3. Husband’s grandfather. 4. Father’s brother 5. Mother’s brother 6. Father’s sister’s husband 7. Mother’s sister’s husband 8. Husband’s father’s brother 9. Husband’s mother’s brother 10. Father. 11. Step-father. 12. Husband’s father {father-in-law). 13. Son. 14. Husband’s son {step-son). 15. Daughter’s husband {son-in-law). 16. Brother. 17. Husband’s brother 19. Son’s son 20. Daughter’s son 21. Son’s daughter’s husband {son’ s son-in-law) . 22. Daughter’s daughter’s husband {daughter's son-in-law). 23. Husband’s son’s son {step-son’s son). 24. Husband’s daughter’s son {step - daughter' s son). 25. Brother’s son J { Aew) _ 26. Sister s son / 27. Brother’s daughter’s husband 28. Sister’s daughter’s husband 29. Husband’s brother’s son 30. Husband’s sister’s son | {brother-in-law). | {grandson). {niece’s husband), {nephew by affinity). With reference to these prohibitions, it is important to bear in mind : — 1. That the degrees prohibited extend to all persons related in lineal consanguinity , that is, in the direct line ascendant and descendant, how- ever far asunder in degree. 2. That relationship of the half-blood is of the same effect as relation- ship of the whole blood. 3. That consanguinity and affinity are contracted “ as well by unlawful company of man and woman as by lawful marriage” ; there- fore it matters not whether the parties are related or connected through lawful wedlock or otherwise : they are equally restricted from inter- marriage within the prohibited degrees. ( next friends, as guardian, for the purpose of proceeding on his or her behalf as petitioner, respondent, or intervener in a cause.” GUARDIAN- SHIP. Minors, lunatics, and invalids. Appointment of guardian ad litem. Minor. 320 PRACTICE IN MATRIMONIAL SUITS. Guardianship. Affidavit in support of application. Co-respon- dent guardian not necessary. Form of election of guardian by petitioner. By rule 106, “ The necessary instrument of' election must be filed in the registry, before the guardian elected can he permitted to extract a citation or enter an appear- ance on behalf of a minor.” By rule 107, “ When a minor shall elect some person or persons other than his or her next of kin, as guardian for the purposes of a suit, or when an infant (under the age of seven years) becomes a party to a suit, appli- cation, founded on affidavit, is to he made to one of the registrars, who will assign a guardian to the minor or infant for such suit.” [/So much of the above rule as relates to infants under seven years cannot apply to petitioners .] The affidavit in support of an application to assign a guardian other than the next of' kin must satisfy the registrar that the proposed guardian is a fit and proper person to be appointed. And by rule 108, “It shall not be necessary for a minor who, as an alleged adulterer, is made a co-respondent in a suit, to elect a guardian or to have a guardian assigned to him for the purpose of conducting his defence.” The following is a form of election of a guardian by a petitioner: — Form 20. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) The day of , 19 In the matter of the proposed petition of Peter Pontifex, of Frogthorpe, in the county of Norfolk, for Dissolution of Marriage. Whereas a suit is about to be instituted in the Probate, Divorce and Admiralty Division of our High Court of SUITS FOR DISSOLUTION OF MARRIAGE. 321 Justice on behalf of Peter Pontifex against Amelia Guardianship. Pontifex (the wife of the said Peter Pontifex) and Ben- jamin Buckenham. And whereas the said Peter Pontifex is now a minor (or as the dose may be) of the age of twenty years and upwards, but under the age of twenty-one years, and therefore by law incapable of 1 acting' in his o|wn name. Now I, the said Peter Pontifex, do hereby make choice and elect James Pontifex, my natural and lawful father and next of kin, to be my curator or guardian for the purpose of 1 instituting the said suit, and for the purpose of carrying on and prosecuting the same until a final decree shall be given and pronounced therein, or until I shall attain the age of twenty-one years, and I hereby appoint Bobert Charles Brown, of 225, Coleman Street, in the City of London, my solicitor, to file or cause to be filed this my election for me in the Divorce Registry of the said Division. In witness whereof I hereunto set my hand and seal this day of in the year 19 (Signed) Peter Pontifex. (l\s.) Signed, sealed, and delivered by the within-named Peter Pontifex in the presence of If, on the other hand, the respondent happened to be the minor instead of the petitioner, the form of election would be as follows: — D.M.C. 21 322 PRACTICE IN MATRIMONIAL SUITS. Guardianship. Form 21. Form of election of guardian by respondent. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) The day of , 19 Pontifex (Peter) 'v. Pontifex (Amelia) and Buckenham (Benjamin), or, Between Peter Pontifex, petitioner, Amelia Pontifex, respondent, and Benjamin Buckenham, co-respondent. Whereas a citation hearing date the day of , 19 , has issued under the seal of the High Court of Justice, Probate, Divorce and Admiralty Division, at the instance of Peter Pontifex, of Frogthorpe, in the county of Norfolk, claiming to have been lawfully married to Amelia Pontifex (formerly Amelia Acle, spinster), citing the said Amelia Pontifex to appear in the said Court, and then and there to make answer to a certain petition of the said Peter Pontifex filed in the Divorce Registry of' the said Court. And whereas the said Amelia Pontifex is now a minor of the age of twenty years and upwards ( or as the 6asew\ay hie) , but under the age of twenty-one years, and therefore by law inciapable of acting in her own ;name . N ow I, the said Amelia Pontifex, do hereby make choice of and elect Andrew Acle, my natural and lawful father and next of kin, to be my curator or guardian for the purpose of entering an appearance for me and on my behalf in the said Court, and for the purpose of making answer for me to the said petition, and of def ending me in the said cause, and to abide for me in judgment until a final decree shall 'be given and pronounced therein, or until 1 shall attain the age of twenty-one years, and I hereby appoint William White, of 66, Frederick’s Place, Old SUITS FOR DISSOLUTION OF MARRIAGE. 323 Jewry, in the City of London, my solicitor, &c. ( conclude Guardianship. asm Form 20). The following* is a form of acceptance of the guardian- Form of ° x ° acceptance of ship by the proposed guardian: — guardianship. Form 22. [ Heading as m Form 20.] Whereas Peter Pontifex, of Frogthorpe, in the county of Norf olk, is about to institute proceedings in the Probate, Divorce and Admiralty Division of his Majesty’s High Court of Justice for dissolution of his marriage with Amelia Pontifex by reason of her adultery with Benjamin Buckenham; and whereas the said Peter Pontifex is now a minor, of the age of twenty years and upwards, but under the age of twenty-one years (or as the case may he ), and therefore by law incapable of acting in his own name, and whereas the said Peter Pontifex has elected me, the under- signed James Pontifex, his natural and lawful father and next of kin, to he his curator or guardian for the purpose of instituting his said suit ^nd for the purpose of carrying on and prosecuting the same until a final decree shall be given or pronounced therein or until he shall attain the age of twenty-one years, as appears by his election filed in the Divorce Registry of' the said Division . Now I the said James Pontifex do hereby declare that I expressly consent to accept the said election of appoint- ment of curator or guardian, for the purpose aforesaid; and I do hereby appoint Robert Charles Brown, of 225, Coleman Street, in the City of London, my solicitor, to file or cause to be filed this my consent for me in the said registry. In witness whereof I have hereunto set my hand and seal this day of 19 James Pontifex. Signed, sealed, &c., in the presence of [ None of the three above forms require more than one witness. ] 21 ( 2 ) 324 PRACTICE IN MATRIMONIAL SUITS. Guardianship. Lunatics and invalids. Summons necessary ; but not in case of minor. If the cause of the assignment is that the party is a lunatic or an invalid, the above forms must be altered accordingly. By rule 196, “A committee duly appointed of a person found by inquisition to be of unsound mind may take out a citation and prosecute a suit on behalf of such person as a petitioner, or enter an appearance, intervene, or proceed with the defence on behalf of such person as a respondent; but if no committee should have been appointed, applica- tion is to be made to one of the registrars, who will assign a guardian to the person of unsound mind, for the purpose of prosecuting, intervening in, or defending the suit on his or her behalf ; provided that if the opposite party is already before the Court when the application for the assignment of a guardian is made, he or she shall be served with notice by summons of such application.” [No order should be made under this rule if there is a bond fide doubt as to the insanity of the patient: Fry v. Fry (1890), 15 P. D. 50; 59 L. J. P. 43; 62 L. T. 501.] If a petitioner is so completely invalided as to be unable to commence or prosecute a suit personally, the registrar will assign a guardian to &ct on his or her behalf. The application, at all events where there is any other party before the Court, must be made on summons sup- ported by affidavits, which must show the actual condition of the lunatic or invalid, so as to satisfy the registrar of his or her inability to act personally, and also of the fit- ness of the proposed guardian . It will be seen that there is an important difference between the case of a minor and that of a lunatic or invalid : for whereas in the former case the Court will appoint a guardian merely on the application of the petitioner sup- ported by affidavit, in the two latter cases the proceeding must be by summons . SUITS FOR DISSOLUTION OF MARRIAGE. 325 By rule 106, “ The necessary instrument of election must he filed in the registry before the guardian elected can he permitted to extract a citation or to enter an appearance on hehalf of the minor.” When the guardian ad litem has been duly elected and assigned, the petition is signed hy the petitioner, and also by the guardian; but the affidavit in support is made by the petitioner only. [Where a wife petitioner in a suit for dissolution was con- fined in a lunatic asylum, and the superintendent of such asylum, acting under instructions from the Commissioners of Lunacy, refused to allow her to be seen for the purpose of swearing the affidavit in support of her petition, the Court ordered the Commissioners to authorize the superintendent to allow her to swear the affidavit forthwith: Beecham, Ex 'parte, (1901) P. 65; 70 L. J. P. 20; 84 L. T. 63.] The petition for dissolution should he intituled in the following form: — Form 23. In the High Court of Justice, Probate, Divorce and Admiralty Division. To the Bight Honour able the President of the said Division. The day of 1 , 19 The petition of Peter Pontifex, of Frogthorpe, in the county of Norfolk (a minor suing by his guardian, James Pontifex), showeth: — After the petition is filed, all subsequent proceedings in the cause should be entitled in either of the following ways: — Guardianship. Instrument of election must be filed in the Divorce Registry. Petition by minor, how signed. Affidavit in support ; ibid. Petition by minor, title of. Ibid, of cause after petition filed. 326 PRACTICE IN MATRIMONIAL SUITS. Guardianship. Next of kin renouncing guardianship. Form 24. In the High Court of' Justice, Probate, Divorce and Admiralty Division. (Divorce.) Pontifex, Peter (by his guardian, James Pontifex) v. Pontifex, Amelia, and Buckenham, Benjamin, or, Between Peter Pontifex (by his guardian, James Pontifex), petitioner, Amelia Pontifex, respondent, and Benjamin Buckenham, co-respondent. [7/ the minor he a respondent, this heading must he altered accordingly .] If the next of kin objects to act as guardian, he should renounce his right to the guardianship . Any form of renunciation that is sufficiently explicit will suffice; the following is merely suggested: — Form 25 . [Heading as in Form 20.] Whereas I, James Pontifex, am the natural and lawful father and only next of kin of the above-named Peter Pontifex, who is now a minor; now I do hereby renounce all right and title to act as curator or guardian of the said Peter Pontifex. (Signed) James Pontifex. [In the presence of one witness.] SUITS FOR DISSOLUTION OF MARRIAGE. 327 The order assigning a guardian will be somewhat after the following form: — Form 26. [Reading as in the application or summons , if any. See title “ Practice as to Motions and Summonses post, p. 511.] Upon hearing the solicitor for James Pontifex and the petitioner, and upon reading the affidavit of 1 the said James Pontifex (and of , if any other affidavits have been filed), I do order that the said James Pontifex be appointed guardian of the said petitioner for the pur- pose of prosecuting a suit for dissolution of marriage for and on behalf of the said petitioner. If the guardian ad litem dies pending suit before the petitioner attains the age of twenty-one years, or recovers his or her health, it is necessary to apply for another guardian to be appointed. This is done on summons supported by affidavits show- ing the death of' the guardian, and that the petitioner is still a minor, or still incompetent to act personally from lunacy or ill-health. If a minor petitioner attains the age of twenty-one years, or a lunatic or invalid recovers and becomes mentally and bodily competent pending suit, the functions of the guardian are at an end. The petitioner should then take out a summons calling on the other side to show cause why the order assigning the guardian should not be rescinded. FEES. For each and every document filed . [The following costs will most probably be allowed on taxation]: — £ 0 s. d. 2 6 Instructions for election . . .068 Guardianship. Order assigning guardian, form of. Guardian dying pend- ing suit. Minor attaining age of twenty-one years, or lunatic or invalid recovering pending suit. 328 PRACTICE IN MATRIMONIAL SUITS. Guardianship. AMEND- MENT OF PLEADINGS Amending petition. Rule 187. Effect of rule 187 to give registrars complete jurisdiction as to amendment in first instance. Appeal to judge, &c. Amendment verbal or in Drawing form (as in Form 21) (per folio £ s. d. of 72 words) . . . . .014 Copy same (per folio of 72 words) . .004 Attending obtaining petitioner’s signature 0 6 8 Attending filing in registry . . .068 [ The above figures are taken from Johnson's Bills of Costs , second edition, London, Sweet and Mgxwell, Limited, 1901. See further as to fees and costs, post, pp. 540 — 603.] Formerly the amendment of petitions and other plead- ings was regulated entirely by rule 34, which is in the following terms: — “ Either party desiring to alter or amend any pleading must apply by motion to the Court for permission to do so, unless the alteration or amendment be merely verbal, or in the nature of a clerical error, in which case it may be made by order of the judge-ordinary, or of one of the registrars in his absence, obtained on summons.” But by rule 187, promulgated July 14, 1875, “ Either of the parties before the Court, desiring' to alter or amend a pleading, may apply by summons to one of the registrars for an order for that purpose.” The effect of this rule has been to substitute the simpler form of procedure by summons for the more complicated form of procedure by motion, and also to give the registrars jurisdiction in the first instance over all questions of amendment of pleadings . From the decision of the registrar an appeal lies, first jto the judge in chambers, secondly to the judge by motion, and so on to the Court of Appeal, and ultimately to the House of Lords. (See post, titles ‘‘Practice as to Motions and Summonses,” p. 511, and “Appeal,” p. 525.) Where an error in a petition or other pleading is “ merely verbal, or in the nature of a clerical error ” (see SUITS FOR DISSOLUTION OF MARRIAGE. 329 rule 34), as where the name of any of the parties has been wrongly spelt, or where the names of the petitioner and respondent, or the date or place of their marriage, have been wrongly set out in the petition, and other mere clerical errors, are allowed to be rectified by a registrar’s order. But no amendment of any pleading may be made without an order. In the case of a clerical error, this order is obtained without summons (see rule 34) on appli- cation to a registrar, supported by an affidavit, showing how the mistake arose, which should be made by the person responsible for it. If it was through the fault ;of the petitioner, the affidavit should be made by the petitioner personally. If, on the other hand, it was through fhe fault of the petitioner’s solicitor or one of his clerks, then the affidavit should be made by such solicitor or clerk. The following form of affidavit is suggested: — Form 27. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) Trowse (Timothy) 'V. Trowse (Charlotte) and Marshland (Robert), or, Between Timothy Trowse, petitioner, Charlotte Trowse, respondent, and Robert Marshland, co-respondent. [// the affidavit is sworn by the petitioner person- ally, it should commence “ I, Timothy Trowse, &c.” as in Form 7.] 1. That being under the mistaken impression that I Amendment of Pleadings. the nature of a clerical error. Order for, how obtained. Affidavit necessary ; by whom made. Affidavit in support of application for leave to amend. 330 PRACTICE IN MATRIMONIAL SUITS. Amendment of Pleadings. Amendment by adding charges committed before date of petition was married on March. 19th, 1900, I instructed mv solicitor that I was married on that date, whereas as ia matter of fact, I was married on March 19th, 1901. 2. That the mistake arose solely through my neglecting to refer to a copy of my marriage certificate which [was in my possession, and also neglecting to take the said copy certificate with me when I instructed my solicitor to file the petition in this suit, and from no other cause (or as the case may he). Sworn, &c. (Signed) Timothy Trowse. [Or, if the affidavit is by the petitioner's soli- citor or a clerk), I, A. B. (or C. D., managing clerk to A. B.), of 25, Street, in the City of London, solicitor for the petitioner in the above cause, make oath and say as follows: — 1 . That I have by mistake alleged in the petition that the petitioner and respondent were married on March 19th, 1900, whereas the correct date, as appears from a copy of' the marriage certificate now before me, is March 19th, 1901. 2. That the mistake arose through my neglecting to inform the petitioner that he must supply me with a copy of the marriage certificate or else instruct me to procure one, for the purposes of this suit, and from no other cause ( or as the case may be). Sworn, &c. (Signed) A. B. or C.D. Where it is desired to amend a petition by adding charges of acts of adultery, &c. committed by the respon- dent before the date of the petition, but only discovered by the petitioner and his advisers after it has been filed, SUITS FOR DISSOLUTION OF MARRIAGE. 331 a summons under rules 34 and 187 becomes necessary; except where the opposite party has entered no appear- ance, and the petitioner is proceeding' m default ( see post, p. 370), in which case the order is usually made by the registrars 1 without summons , on an affidavit commencing as in Form 27, settirtg out the fresh charge or charges it is proposed to make {or as the Case may be), and explain- ing the reasons why they 1 were not included in the original petition, &c. Sometimes it is desired to amend a petition not by adding a fresh charge, but by striking out one already in the petition, or a claim for damages. The summons should be to show cause why the petition should not be amended by adding fresh charges, or with- drawing a claim for damages, or striking out (say) para- graphs 5 and 6, or as the case may be. If the amendment ,asked for should happen to be to strike out a co-respondent, on the ground that there is not sufficient evidence against him, such co-respondent will be allowed his costs (see ante, Chap. XVI., p. 228) on applying for them. (See post, tit. “Practice as to Costs,” p. 540.) [Por the full form of summons, see title “ Practice as to Motions and Summonses post, p. 511.] Amendment of Pleadings. but discovered after filing-. Amendment by striking out. Form of summons. Striking out co-respon- dent. The terms of the amendment are set forth in the order, but all amendments have to be made in the Divorce Registry . The solicitor attends at the Divorce Registry, Room 1 Mode of No. 38, with the order, and makes the amendment in amendment - accordance with its terms, in the presence of one of the clerks in red ink. He then writes a marginal note, also in red ink, “Amended pursuant to the order of , dated ,” which is duly initialled by the clerk. If, on the other hand, it is desired to add charges com- Supplemental mitted after the date of the original petition, it becomes P etltl0n - necessary to file a supplemental petition. 332 PRACTICE IN MATRIMONIAL SUITS. Amendment of Pleadings. Leave to file, how obtained. Amendment in supple- mental petition. Must be supported by- affidavit as to petitioner’s belief, &c. Affidavit must deny collusion and connivance. Supplemental petition, form of. Leave to file a supplemental petition must be obtained on summons before pn;e of the registrars, if an y of the parties charged have entered an appearance. If 1 no ap- pearance has been entered, leave can be obtained without summons, upon an affidavit of the petitioner in support of the application swearing to his belief in the truth of the proposed charges, and stating that no appearance has been entered. Every fresh charge, whether alleged by way of amend- ment or in a supplemental petition, must be verified by affidavit, as in the case of an original petition . In every such affidavit the petitioner must swear to his belief in the truth of the charges he desires to add, and state when they first came to his or her knowledge . The petitioner must also swear that there is no collusion or connivance between him (or her) and the respondent, as in Forms 7 and 29, pp. 298 and 334. The following is a form of supplemental petition: — Form 28. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) To the Eight Honourable the President of the said Division . The day of , 19 . Trowse (Timothy) 1 v . Trowse (Charlotte) and Marshland (Eobert), or, Between Timothy Trowse, petitioner, Charlotte Trowse, respondent, and Eobert Marshland, co-respondent. The supplemental petition of Timothy Trowse, of 125- SUITS FOR DISSOLUTION OF MARRIAGE. 333 King Edward’s Hill, Yarmouth, in the county of Norfolk, showeth — 1. That on the 3rd, 4th, and 5th days of May, 19 , the said Charlotte Trowse ( or “the respondent”), at 125, King Edward’s Hill aforesaid, committed adultery with the said Robert Marshland (or “the co-respondent ”) . 2. That on or about the 29th day of May, 19 , the said Charlotte Trowse (or “the respondent”), at “ The Grey Mare Inn,” Frogthorpe, in Norfolk aforesaid, committed adultery with Benjamin Buckenham. 3. That on or about the 6th day of June, 19 , the said Charlotte Trowse (or “the respondent”), at “ The Loke Cottage,” St. Mary-in-the-Marsh, in the county of Suffolk, committed adultery with Benjamin Buckenham. \If there is no 'possible doubt about a particular date, it is futile to use the words “ on or about,” which directly invite a summons for particulars ( as to which, see post, pp. 361 — 367). Very frequently, however, in spite of every precaution, unless it is a case where there are “ hotel books ” or like documents to refer to, it turns out that the evidence is wrong as to a day or two. In such a case the introduction of the words “ on or about ” is of the greatest possible value, and it is better to risk a summons for particulars than to omit them.’] Wherefore your petitioner humbly prays as before. Timothy Trowse. As in the case of an original petition, every amended or supplemental petition must be supported by an affidavit verifying the same . In the case of an amended petition, this affidavit, allow- ing for the necessary verbal alterations, is the same as in Form 7, ante, p. 298. The paragraph stating that there Amendment of Pleadings. Supplemental petition, form of. Amended or supplemental petition must be supported by affidavit. 334 PRACTICE IN MATRIMONIAL SUITS. Amendment of Pleadings. Supplemental petition, affidavit in support. Service of amended pleadings. Re-service of amended petition. is no collusion or connivance between the parties must in no case be omitted. Form 29. Affidavit in support of Supplemental Petition. [Heading and commencement as m Form 6, adding the word “ supplemental ” before the wor\d “petition.”] 1. That the statements contained in paragraphs 1, 2, and 3 of the supplemental petition filed herein, and dated the day of , 19 , are true, to the best of my knowledge, information, and beljief . 2. [As in Form 7, para. 3, ante, p. 299.] Sworn, &c. (Signed) Timothy Trowse. By rule 36, “A copy of every pleading showing the alterations and amendments made therein shall be de- livered to the opposite parties on the day such alterations and amendments are made in the pleadings filed in the registry; and the opposite parties, if they have already pleaded in answer thereto, shall be at liberty to amend such answer within four days, or such f urther time as may be allowed for the purpose.” [ This means by leaving them at the address supplied for the purpose of service. See rules 39 and 114, post, p. 355.] Every amended petition must be personally re-served in the same manner as citation and original petition {see ante, pp. 301 — 308), unless the Court should dispense with such re-service for good cause shown; except where the amendment consists merely in some trifling clerical error, that cannot possibly affect the charges against the opposite parties. In such case it will suffice to leave a SUITS FOR DISSOLUTION OF MARRIAGE. 335 copy of the amended petition at the address given for ser- vice. (See rules 39 and 114, post, p. 355.) [Where there was only one charge of adultery in the petition, and such charge was wrongly dated, the Court allowed the petition to be amended by inserting the correct date, but refused to dispense with re-service. In this case the petition had been duly served, but the respondent had not appeared. (Charter v. Charter (1889), 58 L. J. P. 44; 63 L. T. 872.)] Supplemental petitions must in every case be re-served, in the same manner as the citation and original petition (see ante, pp. 301 — 308), unless the Court should other- wise order. All applications for substituted service of an amended or supplemental petition must be made by motion, and the practice with respect to them is the same as in the case of original citations and petitions. (See ante, pp. 308 — 316.) Only parties affected by any amended or supplemental petition need he re-served. In the supposititious case before us, a citation has already issued against Charlotte Trowse and Robert Marshland. A further charge of adultery is made against Robert Marshland, and two fresh charges of adultery are made against Charlotte Trowse with an entirely new co- respondent named Benjamin Buckenham. It will be necessary to extract a fresh citation against Benjamin Buckenham (for practice , see ante, pp. 301 — 308), and this citation and a copy of the amended petition under seal (rule 11) will have to be personally served upon him, unless an order for substituted service be .obtained . Copies of the supplemental petition under seal (rule 11) will have to be served on Charlotte Trowse and Robert Marsh- land, but it will not be necessary to extract any further citation against them. It is not necessary to serve personally an order giving leave to amend or to file a supplemental petition. Amendment of Pleadings. Re -service of supplemental petition. Substituted service of amended or supplemental petition. Re- service only necessary on persons affected by amendment. Amended or supplemental petition, form of. Order for amended or supplemental petition. 336 PRACTICE IN MATRIMONIAL SUITS. Amendment of Pleadings. Amendment by striking out charge ; no re-service necessary. Affidavit of service of amended or supplemental petition. Amended petition. Costs not allowed. Fees. Supplemental petition. Fees and costs. Where a petition has been amended by striking out a charge, no personal re-service is necessary; but the altera- tion is brought to the knowledge of 1 the opposite party by leaving a copy of the amended petition at the address given for service. ( See rule 36, p. 334, and rules 39 and 114, post, p. 355.) An affidavit of service of an amended or supplemental petition is always required. [Such affidavit will be in the same form as the “ Affidavit of Service of Citation ,” given in Form 15, ante, p. 307, substituting the words “ amended petition ” or “ supple- mental petition ” for the word “ citation .”] No costs of amending a petition are allowed, except under very special circumstances, as, for example, if it can be shown that the petitioner was prevented from ascer- taining the facts earlier through the deliberate act of one or other of the opposing parties. FEES. Amending ...... Office copy, if five folios or under . [Above five folios, Qd. per folio extra . ] Collating and certifying, if 1 ten folios or under ...... [Above ten folios, 3 d. per folio extra f] Sealing ...... £ s. d. 0 2 6 0 2 6 0 2 6 0 5 0 The fees and costs allowed on taxation on a supple- mental petition are about the same as those allowed in the case of an original petition. (See ante, pp. 315 — 319, and post, pp. 568 — 603.) SUITS FOR DISSOLUTION OF MARRIAGE. 337 By rule 17, “ Before a petitioner can proceed, after having extracted a citation, an appearance must have been entered by or on behalf of the respondents, or it must be shown by affidavit, filed in the registry, that they have been duly cited, and have not appeared.” By rule 20, “An appearance may be entered at any time before a proceeding has been taken in default, or afterwards, as hereinafter directed, or by leave ; ” and by rule 185, made 14th J uly, 1875, “ Application for leave to enter an appearance after a proceeding has been taken in default heretofore mJade to the Court on motion in pursuance of rule 20 shall hereafter be made by summons before one of the registrars.” [The time generally specified in the citation for appear- ance is eight days, but where the party cited is abroad it is extended. ( Robotham v. JRobotham (1858), 1 S. & T. 73; 27 L. J. P. 33.)] Where the party cited is abroad, or there is any other special reason for extending the time, the time in which such party shall appear is specified in the citation itself; and it is now held that, taking into consideration rules 17 and 20, the filing of affidavits in compliance with rule 17 is a proceeding in default within the meaning of rule 20 . The petitioner is at liberty to file the affidavit mentioned in rule 17 after the expiration of whatever may be the time mentioned for the appearance pif the respondent in the citation (it is usually eight ‘days), which by rule 123 must be exclusive of Sundays, Christmas Day, and Good Friday. It would seem to be the intention of' the rules that there should be an affidavit of personal service as to, or an appearance by, each party cited; therefore, in case of appearance by one of the parties and no appearance by another, an affidavit of personal service as to the party who does not appear must be filed. If' no appearance is 22 APPEAR- ANCE. When to be entered. Appearance, time for. Affidavit of non-appear- ance. When to be filed. No appear- ance entered, D.M.C. 338 PRACTICE IN MATRIMONIAL SUITS. Appearance. proceeding by default. Affidavit of search for appearance, form of. Appearance by leave of Court after proceeding in default. entered by any party, you can at once, on filing affidavit of service of citation and of search for appearance, proceed in default by leaving your application for the registrar’s certificate that the pleadings are in order (as to which , see post, pp. 368 — 374), and, if granted, set the cause down for hearing, when it will be taken in its order, as undefended . Form 30. Affidavit of Search for Appearance. [ Commencement as in Form 15, ante, p. 307.] I, Robert Charles Brown, of 225, Coleman Street, E.C., in the city of London, solicitor for the petitioner in the above cause, make oath and say, that I did on the day of , one thousand nine hundred and five, search the book kept in the Divorce Registry of the High Court of Justice for entering appearances by or on behalf of parties cited, to ascertain whether or not any appearance has been entered by or on behalf of Charlotte Trowse, the respondent (or Robert Marshland, the co-respondent) in this cause, and that I find no appearance has been entered by or on behalf of the said Charlotte Trowse (or Robert Marshland) . Sworn, &c. [The affidavit as to search for appearance must be filed as to the co-respondent (if any) as well as the respondent, and in all cases, whether the service be personal or substituted: Cooke v. Cooke and Lucy (1859), 28 L. J. P. 56. It must also state whether the party served is respondent or co- respondent: Temple v. Temple and Laing (1861), 31 L. J. P. 34.] A consent order, or a summons before a registrar under rule 185, for leave to enter an appearance may issue after a proceeding in default has been taken. Indeed, applica- SUITS FOR DISSOLUTION OF MARRIAGE. 339 tion may be made at any stage of the cause for leave to appear. By rule 19, “ All appearances to citations are to be en- tered in the registry in a book provided for that purpose.” And by rule 21, “ Every entry of an appearance shall be accompanied by an address, within three miles of the General Post Office.” Form 31. Entry of an Appearance to “Citation,” or “to Petition for Alimony pendente life ” “Permanent Alimony,” “Variation of Settlements,” or “by Intervener” (or as the case may he). In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) Timothy Trowse, petitioner, against Charlotte Trowse, respondent, and Robert Marshland, co-respondent. The respondent, Charlotte Trowse (or the co-respon- dent, Robert Marshland), appears in person (or Frederick Jones, the solicitor for Charlotte Trowse, the respondent (or Robert Marshland, the co-respondent), appears for the said respondent or co-respondent). [Hem insert the address required within three miles of the General Post Office .] Entered this day pf , 19 An appearance must be entered by the party in person or by his or her solicitor. The party (or his or her solicitor) attends at the Divorce Registry at Somerset House (Room 38), and enters the appearance in a book kept for the purpose under rule 19. Appearance. Ibid. Entry of, in book at Divorce Registry. Address within three miles of General Post Office. Entry of appearance, form of. Must be entered by party or solicitor. At Somerset House. 22 ( 2 ) 340 PRACTICE IN MATRIMONIAL SUITS. Appearance. Affixing stamps and indexing. Appearance to citation sufficient. Notice. Amending appearance. Fees. Allowed on taxation. Parties not appearing heard as to custody of children and costs. He affixes the stamps to the form, and enters the name of the cause in the index book, in the presence of a clerk. Forms are supplied in the Divorce Registry, Room 43. An appearance to the citation in the cause is sufficient for all purposes, and covers all subsequent proceedings. Notice of appearance should be given to the opposite party. If it should become necessary to amend an appearance,, the practice is the same as in the case of amending petition and other pleadings. {See ante, pp. 328 — 334.) FEES. Entering appearance Amendment Search for £ s. d. 0 2 6 0 2 6 0 1 0 The following costs will probably be allowed on taxation: — Petitioners — Search . . . . ... .068 Respondent, co-respondent or intervener — Entering . . . . . .068 Notice (drawing, &c. and serving) . .040 [ But see post, pp. 568 — 603.] Either the respondent or co-respondent in a cause, after entering an appearance without filing an answer to the petition, may be heard in respect of any question as to costs, and is entitled to be served with notice of all pro- ceedings ; and a respondent who is husband or wife of the petitioner may also be heard on any question as to alimony or custody of children, but not on any other matters. [The Court has given leave to a husband respondent to attend before the registrar on the taxation of his wife’s SUITS FOR DISSOLUTION OF MARRIAGE. 341 costs, although he had entered no appearance. ( Letts v. Appearance. Letts (1869), L. R., 2 P. & D. 16.) For the 'position of a husband who has not entered an appearance in the cause , with respect to appearing to subse- quent petitions for alimony, maintenance, or variation of, settlements, see post, tits. “ Practice as to Alimony and Maintenance ” and “ Practice as to Valuation of Settle- ments .”] Where a respondent or intervener is a minor, it is Minor necessary for him to appear by a guardian ad litem. (As & uardian * to co-respondent , see rule 108, ante, p. 320.) The practice as to election of guardians in such a case Practice as to, is the same as in the case of a petitioner. (See ante, pp. 319—328.) The forms also are the same (see ante, pp. 320 — 327), Form of merely substituting the words “respondent,” “co-respon- electlon * dent,” or “intervener” for the word “petitioner.” [But a party cited cannot in any case appear by a guardian not regularly elected. ( Wells v. Cottam (falsely called Wells) (1863), 3 S. & T. 367; 33 L. J. P. 41; 10 L. T. 138.)] (For the practice when a party appears under protest Act on and files an “ act on petition” see post, pp. 395 — 404.) P etltl0n - By rule 39, “ It shall be sufficient to leave all pleadings Service of and other instruments, personal service of which is not; ^he^not’ expressly required by these rules and regulations, at the personal, respective addresses furnished by, or on behalf of, the several parties to the cause.” (See also rule 114, post, p. 355.) By rule 28, “ Each respondent who has entered an answer. appearance may within twenty-one days after service of Time for citation on him or her file in the registry an answer to the petition.” 342 PRACTICE IN MATRIMONIAL SUITS. Answer. How reckoned. Where special time allowed for appearing. Extended time for appearance to citation. Some of the times usually- allowed. Varied according to postal arrangements and other circum- stances. Filing answer where extended time allowed. Relief by answer. This twenty-one days is reckoned exclusive of Sundays, Christmas Day and Good Friday, and also of the day of service. By rule 186, “ Where fhe time allowed for entry of appearance is more than eight days, a respondent who has entered an appearance may, within fourteen days from the expiration of the time allowed for the entry of appearance, file in the registry an answer to the petition.” The time for appiearance is extended whenever the cita- tion has to be served abroad, and, possibly, under other very special circumstances, such as where the party to be served is on the high seas and is expected to land in England on a certain day. In every case such extended time is specified in the citation, and is reckoned according to the distance from the place at which service is to be effected, or as the case may be. If the service is to be effected in France, four- teen days is usually allowed, twenty-one days for Malta, thirty days for America, and two calendar months for India and Australia, and ninety days for Africa. But these figures, though representing the times usually allowed, are varied according to circumstances, and, in every case, postal arrangements, distances from towns and railways, and other matters of a like kind. For instance, sixty days has been allowed for America, in a case where it was shown by affidavit that the party resided in a place very difficult of access. The answer must he filed within fourteen days after the extended time allowed for appearance (r. 186, supra); so that if the citation allowed fourteen days for appearance, the answer would have to be filed within twenty-eight days (exclusive* of Sundays , Christinas Bay and Good Friday, and the day of service) from the date of service. By section 2 of the Matrimonial Causes Act, 1866 (29 Viet. c. 32), “ In any suit instituted for dissolution of SUITS FOR DISSOLUTION OF MARRIAGE. 343 marriage, if the respondent shall oppose the relief sought Answer, on the ground in case of such a suit instituted by a hus- band of his adultery, cruelty, or 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.” Previous to the passing of this statute there was an Practice important distinction between answers in suits for dissolu- tion and in those in other suits. The Ecclesiastical Courts, whose powers and principles are transmitted to the present Court (Matrimonial Causes Act, 1857, s. 6; 20 & 21 Viet, c. 85), possessed a power of giving relief to a respondent, if the answer contained a prayer for it; and consequently the Divorce Court always had, in suits other than for dissolution, the power of giving relief when prayed for in the answer. For instance, to a petition for restitution of conjugal rights, an answer might be filed, alleging adultery against the petitioner, and praying for a judicial separation; and on such an answer the Court could, and frequently did, give the respondent the relief desired. But it was otherwise in dissolution, where the only autho- rity of the Court was that given by statute; and as there was no power given to the Court, except to grant or reject the prayer pf the petition, the Court could never grant relief to a respondent . The only way in which a respondent could obtain any Cross suits, relief in a suit for dissolution other than the dismissal of the petition was to commence a cross suit, which is still Consolidation, occasionally done, in which case the two suits are con- solidated . \For the practice as to consolidation, see post, pp. 367, 368.] 344 PRACTICE IN MATRIMONIAL SUITS. Answer. Answers, forms of. Commence- ment of answer, form of. The following 1 forms of answers and other pleadings will he found useful as precedents in suits for disso- lution: — Form 32. Commencement of Answer. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) (If the petition be by the husband:) The day of 19 Trowse (Timothy) v. Trowse (Charlotte) and Marshland (Eobert), or. Between Timothy Trowse, petitioner, Charlotte Trowse, respondent, and Eobert Marshland, co-respondent. [7/ the petition be by the wife :] Trowse (Charlotte) v. Trowse (Timothy), or, Between Charlotte Trowse, petitioner, and Timothy Trowse, respondent. The respondent, Timothy Trowse (or Charlotte Trowse, or the co-respondent, Eobert Marshland), by his (or her) solicitor (oqr in person), in answer to the petition filed in this cause, saith: — Form 33. By wife to petition for dissolution, claiming' relief. Denial. Answer by a Wife to a Petition for Dissolution of Marriage, claiming Relief. [' Commence as in Form 32.] 1. That she denies that she committed adultery with Eobert Marshland, as set forth in the said petition. SUITS FOR DISSOLUTION OF MARRIAGE. 345 2. The respondent further saith, that in or about the month of , 19 , at 125, King Edward’s Hill, Yarmouth, in the county of Norfolk, the petitioner with his clenched fist struck the respon- dent in the eye. 3. That in or about the month of , 19 , the said petitioner at , with his clenched fist, with great violence struck the respondent and knocked her down. 4. That in or about the month of , 19 , the petitioner at pointed a loaded pistol at the respondent and threatened to murder her. 5. That in and during the years 1903, 1904 and 1905, the said petitioner has habitually used coarse, violent and insulting language towards the re- spondent. 6. That by reason of the premises the respondent on or about the day of , 19 , left the said petitioner, and has never since returned to cohabi- tation with him. 7. That on or about the day of , 19 , at , the said petitioner committed adultery with Edith Haddiscoe. 8. That on or about the day of , 19 , the said petitioner, at 562, Dereham Koad, Nor- wich, in the county of Norf olk, committed adultery with a woman whose name is at present unknown to the respondent. 9. That in or about the months of October, November and December, 19 , the said petitioner, at 125, King Edward’s Hill, aforesaid, committed adultery with Jane Brundell, a servant then in the employ of himself and the respondent. 10. That from about the month of October, 19 , to about the month of March, 19 , the petitioner, at 125, King Edward’s Hill, aforesaid, lived and co- Answer. Counter- charge of cruelty. Ibid. ■ Ibid. Threat to murder. Ibid. Coarse, &c. language. Paragraph alleging respondent compelled by petitioner’s conduct to leave home. Counter- charge of adultery. Ibid. Woman unknown. Ibid. Domestic servant. Ibid. Habitua for months. 346 PRACTICE IN MATRIMONIAL SUITS. Answer. By wife, form of. Respondent driven from home by threats. Petitioner persistently refusing to allow respondent to return. Charge of desertion. Ibid. Bigamy. Ibid. Adultery after bigamy. habited and habitually committed adultery with a woman named Bella Buckenham. 11. That on or about the day of , 19 , the said petitioner, without reasonable cause, threatened the respondent that unless she forthwith left the house he would shut her up and keep her without food . That in consequence, the respondent was compelled to leave the said petitioner, and has ever since lived separate and apart from him, and that ever since the day of , 19 , the said petitioner has, though frequently requested to do so, persistently refused to allow the respondent to return to cohabitation with him. 12. That pn or about the day of , 19 , the said petitioner, without cause, deserted the respondent, and has never since returned to cohabi- tation with her, and that he has deserted the respon- dent without cause for the space of two years and upwards. 13. That on or about the day of ' , 19 , at the parish church of Plymouth, in the county of Devon, the said petitioner went through a cere- mony of marriage with Caroline Cantley, then of Plymouth, aforesaid, spinster (or “widow”), thereby committing the crime of bigamy. 14. That afterwards the said petitioner at Plymouth, aforesaid, cohabited and habitually committed adultery with the said Caroline Cantley. (Or, that afterwards on divers occasions, between the said day of , 19 , and the day of ,19 , the said petitioner at in the county of committed adultery with the said Caroline Cantley.) [It is not sufficient to charge bigamy only, adultery must be charged as well ( Bonaparte v. Bonaparte (1891), 65 L. T. 795), and the adultery and bigamy must be with the same woman: Horne v. Horne (1858), 2 S. & T. 48; 27 L. J. P. 50; Ellam v. Ellam (1889), 58 L. J. P. 56; 61 L. T. 33.] SUITS FOR DISSOLUTION OF MARRIAGE. 347 15. That in or about the month of January, 19 , at 125, King Edward’s Hill, aforesaid, the said peti- tioner committed incestuous adultery with Rebecca Reedham, the sister of the respondent. 16. That on the day of , 19 , at , in the county of , the said petitioner committed rape on the person of [ or , committed ‘ ‘ sodomy or “bestiality”]. The respondent therefore humbly prays — That your Lordship will be pleased to reject the prayer of the said petition, and decree that her said marriage may be dissolved, and that she may have the custody of her said children, together with such other and further relief in the premises, as to your Lordship may seem meet. (Or, in the alternative : — ) The respondent therefore humbly prays — That your Lordship^ will be pleased to reject the prayer pf the said petition and decree her — 1. A dissolution of her said marriage. 2. The custody of her said children. 3. Such further and other relief as is meet. [. Answers need not he signed . Paragraphs 2 to 16 ( inclusive ) of this form must be verified by affidavit. See Form 39.] Form 34. Answer by a Wife to Husband’s Petition, as in Form 2, alleging various Defences, but not claiming Specific Relief. [Commencement as in Form 32.] 1. ( Derdal as in Form 32.) Answer. Ibid. ~ Incestuous adultery. Ibid. Rape, or unnatural crime. Prayer. Alternative form of prayer. Answer alleging various de- fences, but not claiming specific relief. Denial. 348 PRACTICE IN MATRIMONIAL SUITS. Answer. Condonation. Connivance. Collusion. Unreasonable delay. Neglect or misconduct Husband, answer by. Denial. 2. That the petitioner condoned the acts of adultery (if any) alleged in the said petition. 3. That the petitioner has connived at the acts of adultery (if any) alleged in the said petition. 4. That the said petition is collusive, and was presented {or prosecuted) by agreement between the peti- tioner, the respondent, and the co-respondent. 5. That the petitioner has been guilty of unreasonable delay in presenting {or prosecuting) his said peti- tion, for whereas the said supposed acts of adultery are alleged to have taken place in the year 19 , and in the months of January, February, and March, 19 , yet the petitioner did not file his petition until the day of ,19 . 6. That the petitioner has been guilty of such neglect {or misconduct) as has conduced to the said alleged adultery (if any), inasmuch as {here set out the facts relied on). The respondent therefore humbly prays — That your Lordship will be pleased to reject the prayer of the said petition, and that the respondent may have such further and other relief as is meet. \_ Answers need not he signed. Paragraphs 2 to 5 {■ inclusive ) of this form must he verified by affidavit. See Form 39.] Form 35. Answer by Husband to a Wife’s Petition, as in Form 3. [ Commencement as in Form 32.] . 1 . That he denies that he has been guilty of the charges of adultery, cruelty, and desertion {or as the case SUITS FOR DISSOLUTION OF MARRIAGE. 349 may be) alleged against him in the said petition, or any of them. [The above is amply sufficient, but the charges can be categorically traversed, if pref erred, as : “ That he denies that he has been guilty of adul- tery, as alleged in paragraphs 8, 9, 10 and 11 of the said petition. “ That he denies that he has been guilty of cruelty, as alleged in paragraphs 3, 4, 5, 6 and 12 of the said petition. “ That he denies that he has deserted the petitioner, as alleged in paragraph 13 of the said peti- tion.”] 2 . That the petitioner condoned the acts of adultery (if any) alleged in the said petition. 3. That the petitioner condoned the acts of cruelty (if any) alleged in the said petition. [Or, if preferred: “ That as for the acts of adul- tery (or cruelty, or as the case may be) (if any) alleged in paragraphs 3, 4, 5, 6, 8, 9, 10, 11 and 12 of the said petition, the same were afterwards condoned by the petitioner.”] 4. That the petitioner has connived at the adultery (if any) alleged in the said petition. 5. That as to the act of cruelty (if any) set forth in paragraph 12 of the said petition, the respondent was provoked thereto by the threats and violence of the petitioner. 6. That he denies that he threatened the petitioner, or in any manner, by threats or otherwise, compelled the petitioner to leave him, the said respondent, or to live separate and apart from him, as alleged in paragraph 7 of the said petition. 7. That he denies that since about the day of ,19 , he has deserted the said petitioner, as set forth in paragraph 13 of the said petition. 8. That by reason of the circumstances hereinafter set Answer. Condonation. Connivance. Justification. Denial. Justification. 350 Answer. Counter- charges. Husband respondent, citation by. Respondent, citation by, form of. PRACTICE IN MATRIMONIAL SUITS. forth, the respondent had good and reasonable cause for living apart from the petitioner. [Set forth Here. in numbered paragraphs any con- duct of which the petitioner may Have been guilty, justifying the husband in leaving her. If it is desired to make countercharges of adultery , cruelty ,, or bigamy ( or as the case may be ), see Form 33. If the husband desires to claim relief by answer, conclude with prayer as in Form 33; if, On the other hand, he only asks that the petition may be dismissed, conclude with prayer as in Form 34. Answers need not be signed. In the above form paragraphs 2, 3, 4, 5 and any subsequent paragraphs containing countercharges must be verified by affidavit. See post, p. 352.] If a husband respondent countercharges the petitioner with adultery, the (alleged adulterer must be made a co-respondent, ,a citation against him extracted, and a sealed copy of the answer served with it. A copy of the petition is not served on the co-respon- dent, njor is any citation served on the petitioner. Form 36. Citation by Respondent. To Robert Marshland, of The Loke Cottage, St. Mary-in-the-Marsh, in the County of Suffolk. .Whereas Charlotte Trowse, of The Loke Cottage afore- said, claiming to have been lawfully married to Timothy Trowse, of 125, King Edward’s Hill, Yarmouth, in the county of Norfolk, has filed her petition against him in the Divorce Registry of our said Court, praying for a dissolution of marriage, wherein she alleges that he has been guilty of adultery coupled with cruelty towards her. SUITS FOR DISSOLUTION OF MARRIAGE. 351 And whereas the said Timothy Trowse has filed in Answer, the said registry his answer to the said petition, wherein he alleges that you have been guilty of adultery with the said Charlotte Trowse, and prays for a dissolution of marriage. Now THIS IS TO COMMAND YOU, that within eight days Citation by after service hereof on you, inclusive of the day of such res P ondent * service, you do appear in our said Court, then and there to make reply to the said answer, a copy whereof sealed with the seal of the said Court is herewith served upon you. And take notice, &c. (as in Form 9, ante, p. 301). [For the 'practice as to citations, see ante, pp. 301 — 315.] Form 37. Title or Style of Cause after Adulterer has been cited Tit le of cause by a Respondent claiming Relief by Answer. of^eg^°^ „ //-.it \ adulterer. Trowse (Charlotte) v. Trowse (Timothy) and Marshland (Robert), cited. Or, Between Charlotte Trowse, petitioner, Timothy Trowse, respondent, and Robert Marshland, party cited. [It will he observed that the word “ co-respondent ” is not used.~\ A sealed copy of the answer must be served on fhe Sealed copy . • / • served on petitioner. petitioner. Form 38. Answer by Co-respondent. Co-respon- dent, [Commence as in Form 32, and allege any counter- answer by. charges as in Forms 33 and 34', and add as a final paragraph : — ] “ That at the time when the co-respondent committed Denial of 352 PRACTICE IN MATRIMONIAL SUITS. Answer. knowledge that respon - dent married woman. Affidavit in support of. To contain denial of collusion or connivance ; but not in case of co- respondent, Affidavit in support of answer, form of. the acts of adultery (if any) alleged in the said petition,, he did not know that the respondent was a married woman.” [ Conclude with prayer as in Forms 33 or 34. Answers need not be signed, but all countercharges and final paragraph must be verified by affidavit. See Form 39.] By rule 30, “ Every answer which contains matter other than a simple denial of the facts stated in the peti- tion, shall be accompanied by an affidavit made by the respondent, verifying such other or additional matter, so far las he or she has personal cognizance thereof, and deposing as to his or her belief in the truth of the rest of such other or additional matter, and such affidavit shall be filed with the answer.” And by rule 31, “ In cases involving a decree of nullity of marriage, or of judicial separation, or of dissolution of marriage, or a decree in a suit of jactitation of marriage, the respondent who is husband or wife of the petitioner shall, in the affidavit filed with the answer, further state that there is not any collusion or connivance between the deponent and the petitioner.” It is not necessary for a co-respondent to deny collusion or connivance. Form 39. Affidavit in support of Answer. (See Forms 33, 34, and 35.) [ Commencement as in Form 7, ante, p. 298.] I, Charlotte Trowse, of The Loke Cottage, St. Mary-in- the-Marsh, in the county of Suffolk (or Timothy Trowse, of 125, King Edward’s Hill, Yarmouth, in the county of Norfolk), the respondent in the above cause (or, the above- named respondent), make oath and say as follows: — 1 . That the allegations contained in paragraphs 2, 3, 4, SUITS FOR DISSOLUTION OF MARRIAGE. 353 5, 6, 7, 11 and 12 (or as the case may he) of my answer dated the day of , 19 , are true. [If this affidavit is supposed to he in answer to Form 34, the paragraphs will he 2, 3, 4, 5 and 6, that is the whole answer . ] 2. That the allegations contained in paragraphs 8, 9, 10, 13, 14, 15 and 16 (or as the case may he) of my said answer are true to the best of my know- ledge, information, and belief . 3. That there is no collusion or connivance between me and the petitioner in any way whatever . [If collusion or connivance he alleged in the answer , add the words, “ otherwise than is in my said answer set forth.”] Sworn, &c. (Signed) Charlotte Trowse. [If either a respondent or co-respondent simply denies the charges in a petition, no affidavit in support of the answer is required. Such affi- davit only becomes necessary where fresh matter in the shape of countercharges is intro- duced. In the above Form, therefore, there is no allusion to paragraph 1, which is usually a simple traverse of the charges in the petition .] By sect. 28 of the Matrimonial Causes Act, 1857 (20 & 21 Viet. o. 85), “ . . . on every petition pre- sented 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 committed adultery be made a respondent; . . .” Answer. Ibid. INTER- VENTION By alleged adulteress. D.M.C. 23 354 PRACTICE IN MATRIMONIAL SUITS. Intervention. Application no longer by- motion in open Court. May be made whether charges in petition or answer claim- ing relief. Made to judge in chambers. Appearance and answer by intervener. Title of cause, alleged adulteress intervening. By rule 23, application for leave to intervene in any cause must be made by motion, supported by affidavit. And by rule 24, every party intervening must join in the proceedings at the stage in which he ( or she) finds them, unless it is otherwise ordered. This application is no longer made by motion in open Court in the first instance. It may be made equally whether the charge is made in an original petition, or where relief is claimed by answer as above. The party charged should apply to a judge in chambers by summons ex parte , for leave to enter an appearance as respondent. [ See post, tit. “ "Practice as to Motions and Summonses /’ p. 511.] On leave being granted the alleged adulteress will be in a position to file her answer and proceed in the suit subject to the limitation in rule 24, supra. The title of the cause would then be as f ollows : — Form 40. [If the intervention is in an original petition as in Form 3.] Trowse (Charlotte) v. Trowse (Timothy) and Haddiscoe (Edith), intervening as re- spondent. Or, Between Charlotte Trowse, petitioner, Timothy Trowse, respondent, and Edith Haddiscoe, intervening as re- spondent. SUITS FOR DISSOLUTION OF MARRIAGE. 355 [7/ the intervention is in a case where relief is claimed by Intervention. answer , as in Form 33.] Trowse (Timothy) v. Trowse (Charlotte) and Marshland (Robert), and Haddiscoe (Edith), intervening. Or , Between Timothy Trowse, petitioner, Charlotte Trowse, respondent, and Robert Marshland, co-respondent, and Edith Haddiscoe, intervening. [Leave to intervene as above is only granted in suits for dissolution of marriage ( Farrell v. Farrell (1897), 76 L. T. 167); neither will it be granted where countercharges only are made in answer, but no relief is claimed by the respon- dent: Harrop v. Harrop, (1899) P. 61; 68 L. J. P. 58; 80 L. T. 171; Lowe v. Lowe, (1899) P. 204; 68 L. J. P. 60; 80 L. T. 575. The last of these two cases was decided in the Court of Appeal . ] By rule 29, “ Each respondent shall, on the day he or answer. she files an answer, deliver a copy thereof to the petitioner, Service of. or to his or her proctor, solicitor, or attorney.” By rule 39, “It shall be sufficient to leave all pleadings Other and other instruments, personal service of which is not serv^e of.’ expressly required by these rules and regulations, at the respective addresses furnished by or on bebalf of the several parties to the cause.” And by rule 114, “It shall be sufficient to leave all Notices, notices and copies of pleadings and other instruments which by these rules and regulations are required to be given or delivered to the opposite parties in the cause, or to their proctors, solicitors, or attorneys, and personal service of which is not expressly required at the address 23 (2) 356 PRACTICE IN MATRIMONIAL SUITS. Answer, &c. Service of. Personal service of answer not required. Filing or serving pleading, &e. out of time, or failing to deliver copy of, &c. furnished as aforesaid by the petitioner and respondent respectively.” It seems that personal service of the answer is not re- quired. Except where the respondent claims relief by answer, a plain copy of the answer is sufficient for service. This should be served on the solicitor for the petitioner, or, if the petitioner conducts the suit in person, by leaving a copy at the address given in the petition. A copy of the affidavit verifying the petition need not he served. The Act of Parliament enabling a respondent to claim relief by answer is silent on the point as to whether the service of such answer should be personal or not. If the husband is the respondent, and in his answer he charges his wife with adultery, he must extract a citation against the alleged adulterer, which must be personally served on, and a sealed copy thereof delivered to him. It is, however, most probable that, in every case where an answer contains countercharges, and no reply to such countercharges has been filed, the registrar will require an affidavit of personal service on the petitioner before grant- ing his certificate, as to which, see post, pp. 368 — 374. By rule 37, if either party in the cause fail to file or deliver a copy of the answer, reply, or other pleading, or to alter or amend the same, or to deliver a copy of any altered or amended pleading, within the time allowed for the purpose, the party to whom the copy of such answer, reply, or other pleading, or altered or amended pleading, ought to have been delivered, shall not be bound to receive it, and such answer, reply, or other pleading shall not be filed, or be treated or considered as having been filed, or be altered or amended, unless by order . . . to be obtained on summons. The expense of obtaining such order shall fall on the party applying for it, unless otherwise directed. If, therefore, a respondent fails to file an answer within twenty-one days of service of citation (rule 27), or to SUITS FOR DISSOLUTION OF MARRIAGE. 357 deliver a copy of such answer when filed on the day of filing to the petitioner or his solicitor (rule 28), such answer cannot be filed or served without leave obtained on summons under rule 37. If an answer is filed out of time, and the mistake is not noticed at the moment, it is bound to be discovered when the cause is set down, which cannot be done without a registrar’s certificate that the pleadings are in order. (See post, pp. 368 — 374.) In that case leave must be obtained on summons for the pleading to remain as filed. By rule 32, “ Within fourteen days from the filing and delivery of the answer the petitioner may file a reply thereto, and the same period shall be allowed for filing any further pleading by way of rejoinder, or any sub- sequent pleading.” In the Divorce Court, when a pleading denies the allegations of the previous pleading, the parties are con- sidered at issue, and no joinder of issue is required. Therefore a reply is only necessary when counter- charges, &c. are made by the respondent in his or her answer, or, in the case of a co-respondent, where he denies that he knew the respondent was a married woman, as in Form 38. It is unnecessary to file a reply where the answer is a simple traverse of the charges in the petition, or where the only other plea is a mere justification, as in Form 35, paragraphs 1, 5, 6, 8. No leave to file a reply is necessary. Answer, &c. Answer filed out of time received by mistake. REPLY AND SUBSE- QUENT PLEADINGS. Time for filing. J oinder of issue unnecessary. Reply, when necessary. When not necessary. 358 PRACTICE IN MATRIMONIAL SUITS. Reply and subsequent Pleadings. Reply, form of. Reply to answer making counter- charges and claiming relief. Rejoinder, and subse- quent pleadings. Title and commence- ment of. Subjoined is a simple form of reply: — Form 41. Reply (or Replication). [Commence* as in Forms 32 or 37.] The petitioner, by his {or her) solicitor, says — That he (or she) takes and joins issue on the answer of the respondent. Or, That he (or she) takes and joins issue on the 2nd, 3rd, and 4th paragraphs of the answer of the respondent (or as the case may he). [Add any further facts it is desired to plead , and conclude, “ Wherefore the petitioner prays as before.”] Of course, in cases where relief is claimed by answer, for all practical purposes, a cross suit has been commenced. In such a case something more than a mere traverse or joinder of issue may become necessary. A reply to meet such a case can easily be framed from one of the forms of answer, given ante, t pp. 344 — 350. Rejoinders and all subsequent pleadings have to be filed within fourteen days after answer. (See rule 32, ante, p. 357.) It is not thought necessary to give forms of “ rejoinder ” or subsequent pleadings. The necessity for these very seldom arises and, when it does, pleadings may easily be framed from one or other of the above forms . The heading (or style and title) and commencement of a rejoinder would be the same as that of a reply . Form 42. Plea of Estoppel. 1 . That the petitioner (or respondent) ought not to be admitted to allege adultery committed by the SUITS FOR DISSOLUTION OF MARRIAGE. 359 respondent with R. S. (or by the petitioner) as set forth in paragraphs 4, 5, and 6 of the petition (or answer) filed in this cause by reason that on the day of , 19 , the said petitioner (or respondent) filed a petition in the Probate, Divorce, and Admiralty Division of the High Court of Justice (or this honourable Court), pray- ing for a dissolution of his (or her) marriage with the said respondent (or petitioner) on the ground that she had committed adultery with the said ft. S. (or that he had committed adultery) ; and charged the said adultery in the same terms as it is now charged in paragraphs 4, 5, and 6 of the present petition (or answer) as aforesaid; that the said respondent (or petitioner) in her (or his) answer to the petition filed by the petitioner (or respon- dent) on the day of ,19 , as aforesaid, denied the adultery therein charged against her (or him) ; that the said cause was tried before the Right Honourable Sir Gorell Barnes, President of the said Division, on the day of , 19 , when his Lordship pronounced that the said alleged adultery had not been proved. By rule 33, “A copy of every reply and subsequent pleading shall, on the day the same is filed, be delivered to the opposite parties, or to their proctor, solicitor, or attorney.” The service is therefore the same as in the case of an answer. Plain copies only need be delivered to the opposite side. The effect of filing or serving a reply on subsequent pleading out of time is the same as in the case of an answer. (See ante, p. 356.) Reply and subsequent Pleadings. Directions for serving replication or subsequent pleading. Plain copies only. Effect of filing or serving out of time. 360 Reply and subsequent Pleadings. Fees. Costs allowed on taxation. Reply settled by counsel. PRACTICE IN MATRIMONIAL SUITS. FEES. £ s. d. Filing answer, affidavit in support, or any other pleading . . . . .026 [The following costs will probably be allowed on taxation:] Instructions for defence .... 0 6 8 Attending retaining counsel . 0 6 8 Paid retainer to counsel and clerk . 1 3 6 Perusing petition ..... 0 6 8 Attending entering appearance 0 6 8 Notice of appearance .... 0 4 0 Instructions for answer .... 0 6 8 Drawing same and copy (if settled by solicitor) ...... 1 0 0 Attending counsel with petition to settle . 0 3 4 Paid his fee and clerk (if answer settled by counsel) ...... 1 3 6 Drawing affidavit in support of answer . 0 13 4 Attending respondent swearing 0 6 8 Attending filing answer and affidavit 0 6 8 Attending serving petitioner’s solicitor . 0 3 4 Reply. Instructions for reply . 0 6 8 Drawing same (or Is. per folio) . 0 5 0 Attending filing . . 0 6 8 Attending serving respondent’s (or co- respondent’s) solicitor . 0 3 4 [ But see further as to costs allowed on taxa- tion, post, pp. 568 — 603.] If a reply is settled by counsel, the costs (if allowed) are the same as in the case of an answer. SUITS FOR DISSOLUTION OF MARRIAGE. 361 By rule 187, promulgated in 1875, in substitution for rule 34, “ Either of the parties before the Court desiring to alter or amend a pleading may apply by summons to one of the registrars for an order for that purpose.” [ This is subject to an appeal to a judge. See rule 184, ante, p. 284.] By rule 35, “ When a petition, answer, or other plead- ing has been ordered to be altered or amended, the time for filing and delivering a copy of the next pleading shall be reckoned from the time of the order having been complied with.” And by rule 36, “A copy of every pleading showing the alterations and amendments made therein shall be delivered to the opposite parties on the day such altera- tions and amendments are made in the pleadings filed in the registry; and the opposite parties, if they have already pleaded in answer thereto, shall be at liberty to amend such answer within four days, or such further time as may be allowed for the purpose.” The effect of failing to amend or altering a pleading within the time specified in the order for amendment, or of neglecting to deliver a copy as required by the above rule, is the same as in the case of filing or serving an answer (rule 37), as to which, see ante , p. 356. [The practice as to amendment of answer and all subse- quent pleadings is the same as in the case of “ amendment of petition ,” ante, pp. 328 — 336.] By rule 38, ‘‘Applications for further particulars of matters pleaded are to be made to the Judge Ordinary, or to one of the registrars in his absence, by summons, and not by motion.” [Now to the registrar in the first instance. See rules 181—184, ante, p. 284.] Reply and subsequent Pleadings, Altering or amending a pleading. Time for filing amended pleading. Service of amended pleading. Effect of failing to alter or amend, or to deliver amended pleading in time. PARTI- CULARS. 362 PRACTICE IN MATRIMONIAL SUITS. Particulars. Particulars, in what cases applied for. Pleading in general terms may occasion- ally be of great prac- tical utility. Particulars, time for applying for. The application for particulars alluded to in rule 38 is supposed only to be made or granted in cases where the charges set forth in the petition or answer are not suffi- ciently specific, so as to enable the party accused to meet or reply to them. In practice, however, no matter how carefully the plead- ings are drawn, a summons for particulars is taken out in nearly every contested case. It is therefore a very open question if it is not often wiser to plead in as general terms as possible, whether a case is likely to be defended or not. (See Form 4 and observations thereon, ante, p. 295.) In a case that occupied the attention of the Court for some weeks in 1894, a wife was about to file a petition for judicial separation on the ground of cruelty. Quite by accident her solicitor discovered that her husband was about to petition for a divorce. The solicitor immediately filed a petition for judicial separation, charging all the acts of cruelty in one paragraph in general terms, as in Form 4. He was thus enabled to get on to the file first, and when the husband’s petition was brought into the Registry, which happened within half an hour, it had to be treated as a cross-petition, and the wife’s solicitor had the conduct of the case. The particulars in this case were of great length, and an original petition setting out the charges in full would probably not have been filed under several days. If the charges as to which particulars are desired are contained in the original petition, the summons for parti- culars should be taken out before filing the answer. If they are contained in the answer, then the summons should be taken out before filing reply. Particulars may, how- ever, be applied for at any time. [Where a petition for dissolution alleged a specific act of adultery on the 25th of August, and other acts of adultery between that day and the 31st of October, an order for SUITS FOR DISSOLUTION OF MARRIAGE. 363 particulars of the dates of these latter acts was refused: Boddy v. Boddy and Grover (1858), 28 L. J. P. 16. Where a wife charged cruelty which consisted partly in abusive language, particulars were ordered of the names of the servants who had heard the abusive language used: Bishop v. Bishop, (1901) P. 325; 70 L. J. P. 93; 85 L. T. 173. The best particulars it is possible to get from the witnesses must be given. It is not sufficient to allege generally that the respondent and co-respondent were constantly meeting in the respondent’s boudoir and bedroom, and that they were frequently out driving alone together: Hartopp v. Hartopp and Cowley (1902), 71 L. J. P. 78; 87 L. T. 188.] If frivolous, vexatious or irrelevant charges are made in a petition, the proper course is to take out a summons asking that they may be struck out. [But charges against a husband of acts of familiarity with women, not amounting to adultery, are not necessarily frivo- lous, &c., as it is not impossible that, if proved, they might lead the judge to the conclusion that the husband had con- duced to his wife’s adultery: Cox v. Cox (1893), 70 L. T. 200 .] An order for particulars is, more or less, in the following form: — Form 43. [Title as in Form 32.] Upon hearing the solicitors for the petitioner and respondent, I do order that the petitioner within seven days do furnish to the respondent further and better particulars of the times and places when and where the acts of cruelty ( or adultery) mentioned in paragTaphs 5,6, and 7 (or as the case may be) of the petition filed herein, were committed, and that the said petitioner within the same time do file an affidavit and furnish to the respondent a copy thereof, that no further or better particulars can be given from the facts now within the petitioner’s know- ledge: And that if at any time between the date of the Particulars. Frivolous and vexatious charges. Order for, form of. 364 PRACTICE IN MATRIMONIAL SUITS. Particulars. Form of. particulars (if any) being given by the petitioner under this order and the hearing of this cause, the petitioner shall obtain such further information as will enable her ( or him) to give particulars of the matters in respect of which she may have previously made affidavit, that she had then no knowledge, she shall forthwith give particulars thereof to the respondent by way of additional particulars, and, if it shall appear at the hearing that the respondent shall have been materially prejudiced thereby, then that the case shall be dealt with by rejection of the evidence or by adjournment of the trial, or otherwise as to the Court shall seem just: And that if any such further particulars be delivered at any time less than ten clear days before the hearing of this cause, the respondent may apply by sum- mons for the postponement of' the said hearing : And that the respondent have days further time to file her ( or his) answer (or as the case may be), after the filing and delivery of the said particulars and affidavit. (Signed) R. P. (Registrar.) Dated the 25th day of July, 19 Form 44. Particulars. (1) Furnished pursuant to an Order of the Court. [Title as in Form 32.] The following are the particulars as to the acts of adul- tery charged in the 6th paragraph of the petition (or as the case may be) in this case, and now furnished pursuant to an order of this Court, dated the day of , 19 The petitioner alleges that the adultery mentioned in the 6th paragraph of the said petition (or as the case may be) commenced about the months of March or April, SUITS FOR DISSOLUTION OF MARRIAGE. 365 1903, and was committed on many subsequent occasions between the said months and the beginning of the present year, but on what particular days, or at what particular places, or in what particular month or months, the said respondent is unable to set forth. Dated this 16th day of October, 19 Yours, &c., B. & J., petitioner’s solicitors. (2) Affidavit verifying Particulars of Acts of Adultery. [ Title as in Form 32.] I, , of , in the county of , the above- named petitioner, make oath and say: — 1 . I have been informed and verily believe that the acts of adultery referred to in the 6th paragraph of the petition (or as the case may be) filed in this cause commenced about the month of March or April, 1903, and were committed on many subsequent occasions between the said months and the begin- ning of the present year, but on what particular days, or at what particular places, or in what parti- cular month or months, I am unable to state. (3) Affidavit that no Particulars as to Acts of Adultery can be given. [ Title as in Form 32.] 1, , of , in the county of , the above- named petitioner, make oath and say: — 2 . By an order made in the above-mentioned cause, and bearing date the day of last, it was ordered that I should file particulars as to the facts of adultery charged in the 6th paragraph of the petition (or as the case may be) filed by me in this cause. Particulars. Affidavits as to, form of. 366 PRACTICE IN MATRIMONIAL SUITS. Particulars. Further particulars. Explanatory affidavit. Interroga- tories. Order for particulars not complied with. Fees. Costs. Allowed on taxation. 3 . I am unable to set forth, further than is contained in the 6th paragraph of the said petition (or as the case may he ), the times and places of the adultery charged in the said 6th paragraph of my said petition (or as the case may he). If further particulars are desired, application must be made by summons as before, but orders for further par- ticulars are only made under very special circumstances. When the party ordered to give particulars has filed an affidavit that no better particulars can be given, as in Form 44, supra, the Court may order such party to file a further affidavit explaining why no better particulars can be given. {As to obtaining leave to interrogate a party under the above circumstances, see Discovery and Inspec- tion, tit. “Evidence,” post, pp. 631 — 637.) If the order for particulars is not complied with, a summons should be taken out to show cause why the charges of which particulars have been ordered to be given should not be struck out. FEES. Affidavit Particulars . £ s. d. .026 .026 [// the affidavit and 'particulars are included in one docu- ment 2s. 6c?. only is charged, that being the usual fee for filing a single document .] As a rule, the costs of summonses for particulars are not allowed. In the case mentioned ante, p. 362, where the wife’s solicitor deliberately charged cruelty in a single para- graph, the husband was allowed his costs of obtaining particulars, and this would probably always be the case under similar circumstances. SUITS FOR DISSOLUTION OF MARRIAGE. 367 If the order is made with costs, probably the following Particulars, would be allowed on taxation: — £ s. d. Drawing summons . . . .050 Attending issuing . . . . .068 Copy and service of summons . . .036 Attending hearing of summons . .068 „ for order . . . .068 Copy and service of order . . .036 \Bujb see further as to costs allowed on taxa- tion , post, pp. 568 — 603.] In cases where there are cross petitions, in order to save Cross a double hearing, the suits are consolidated, and the con- petltl0ns ‘ duct of the cause is generally given to the first petitioner . If in our supposititious cause the respondent had filed a Bating" cross petition, as in Form 3 (ante, p. 292), instead of causes. claiming relief by answer, as in Form 33, as soon as appearances had been entered in the respective suits, a notice, more or less in the following form, would have been sent to the solicitors for the respective parties, or, if they appeared in person, to the parties themselves No summons is necessary. Form 45 . In the High Court of Justice, Probate, Divorce and Admiralty Division (Divorce.) Trowse v. Trowse and Marshland. Trowse v. Trowse. Summons unnecessary. Notice to consolidate, form of. Notice. It having been brought to the notice of the registrars that the petitioners and respondents in the above suits 368 PRACTICE IN MATRIMONIAL SUITS. Consolidating" Causes. Order to consolidate. Title of consolidated cause. Papers to be filed and minutes kept in new title. HEARING OR TRIAL. now in progress in this Division of the High Court are the same persons: I have to request that you will attend before the registrars on the instant, at o’clock, to show cause (if any) why the said suits should not, be con- solidated. [The registrar then makes the order for consolidation , more or less in the following ; terms : — ] Trowse v. Trowse and Marshland. Upon hearing the solicitors for all parties, I do order that this suit will be consolidated with the suit of Trowse v. Trowse. Trowse v. Trowse. Upon hearing the solicitors for both parties, I do order that this suit be consolidated with the suit of Trowse v. Trowse and Marshland, and carried on in the title of — Trowse v. Trowse and Marshland, and Trowse v. Trowse. All papers filed after consolidation should be endorsed with the title named in the order for consolidation, and the minutes kept in the Registry are entered in the com- bined action. It was formerly the practice to apply to the Court on motion for directions how a cause should be tried, but by rule 205 (promulgated July, 1880) “it shall not be necessary in any case to apply to the Court by motion for directions as to the mode of hearing or trial of a cause. When the pleadings are concluded the parties to a cause may proceed in all respects as though upon the day of SUITS FOR DISSOLUTION OF MARRIAGE. 369 filing the last pleading a special direction had been given by the Court as to the mode of hearing or trial to the effect following: — 1. In cases in which damages are not claimed that the cause be heard by oral evidence before the Court itself without a jury. 2. In cases in which damages are claimed that the cause be tried before the Court, with a common jury. And any party to a cause may apply by summons for a direction that the cause may be heard or tried otherwise than is hereby provided.” '[See post, tit. “ Practice as to Motions and Summonses ,” p. 511.] And by rule 206, “ Before a cause is set down for hear- ing or trial the pleadings and proceedings in the cause shall be referred to one of the registrars, who shall certify that the same are correct and in order, and the registrar to whom the same are referred shall cause any irregularity in .such pleadings or proceedings to be corrected, or refer any question arising therefrom to the Court for its direc- tion; any party to the cause objecting to such direction of the registrar may (subject to any order as to costs) apply to the Court on summons to rescind or vary the same.” [See post, tit. “ Practice as to Motions and Summonses ,” p. 511.] When the pleadings are complete and the parties are at issue, the petitioner should fill up the form of application for the registrar’s certificate and leave it, with the certi- ficate of marriage, at the Divorce Registry. This appli- cation will be forwarded to the registrar, who, if the pleadings are in order, will sign his certificate. After the lapse of three or four days this certificate can be called for and, if obtained, the cause can be set down. Hearing or Trial. Mode of trial. Registrar’s certificate that plead- ings are in order. Application for. D.M.C. 24 370 PRACTICE IN MATRIMONIAL SUITS. Hearing or Trial. Registrar’s certificate, form of application for. Application for registrar’s certificate where no appearance entered. Ibid, where appearance entered, hut no answer filed. Undefended cause. Difference between position of parties who have entered no appearance at all and those who have entered an appearance but filed no answer. Where answer filed to peti- tion for ali- mony pendente lite, but no answer to original petition. Where answer consists of The form of application for the registrar’s certificate can he obtained at the registry free of charge, room No. 43. No fee is charged on leaving this application, neither will the costs of settling it be allowed on taxation. If no appearance has been entered, this application can be left as soon as the time for entering an appearance has expired. The petitioner’s solicitor (or the petitioner him- self if 11 in person ”) must file an (affidavit of “ Service of Citation ” ( see Form 15, ante, p. 307), with citation annexed, also an affidavit of search for appearance, as in Form 46, infra. If an appearance has been entered, but no answer has been filed, the application can be made on filing an affi- davit of search for answer, as in Form 47, p. 372. In both the above cases the cause is heard as undefended, though whereas parties who have not entered an appear- ance cannot be heard on any part of the case, parties who have entered an appearance, but have filed no answer, are in a somewhat better position. For by rule 50, “ Either of the respondents in the cause, after entering an appearance, without filing an answer to the petition in the principal cause, may be heard in respect of any question as to costs, and a respondent, who is hus- band or wife of the petitioner, may be heard also in respect to any question as to custody of children, but a respondent who may be so heard is not at liberty to bring in affidavits touching matters in issue in the principal cause, and no such affidavits can be read or made use of as evidence in the cause.” (See also ante, p. 341.) If an answer to a petition for alimony pendente lite (as to which see post, tit. “ Practice as to Alimony and Main- tenance ,” p. 446) has been filed by a husband respondent, he has the right to be heard on that petition only, but not any other part of the case. If the answer filed merely denies the charges in the petition, issue is considered to be already joined (see ante, SUITS FOR DISSOLUTION OF MARRIAGE. 371 p. 357), and the petitioner can proceed at once to leave Hearing or his application for the registrar’s certificate. But if the answer contain countercharges (whether traverse only. relief other than the dismissal of the petition is claimed ibid, where or not), the application cannot be left until issue is joined; charges are in other words, until the pleadings are complete. made. Form 46. Affidavit of Search for Appearance. Trowse (Timothy) v. Trowse (Charlotte) and Marshland (Robert). Or, Between Timothy Trowse, petitioner, Charlotte Trowse, respondent, and Robert Marshland, co-respondent. Affidavit of search for appearance, form of. I, Robert Charles Brown (or “I, A. B., clerk to R. C. B.”), of 25, Coleman Street, E.C., in the City of London, solicitor for the petitioner in the above cause, make oath and say that I did, on the day of , one thousand nine hundred and five, search the book kept in the Divorce Registry of the High Court of Justice for entering appearances by or on behalf of parties cited, to ascertain whether or not any appearance has been entered by or on behalf of Charlotte Trowse, the respondent, or Robert Marshland, the co-respondent, in this cause, and that I find no appearance has been entered by or on behalf of the said Charlotte Trowse or Robert Marshland, or by or on behalf of either of them. Sworn, &c. (Signed) R. C. B. or A. B. 24 (2) 372 PRACTICE IN MATRIMONIAL SUITS. Hearing- or Trial. Affidavit of search for answer, form of. Affidavit of search for reply, form of. Form 47. Affidavit of Search for Answer. [Commencement as in Form 46.] I, Robert Charles Brown, (or “ 1, A. B., clerk to R. C. B.”), of 25, Coleman Street, in the City of London, solicitor for the petitioner in the above cause, make oath and say, that I did on the day of , one thousand nine hundred and five, search the Court minutes at the Divorce Registry of the High Court of J ustice to ascertain whether or not any answer had been filed by or on behalf of Charlotte Trowse, the respondent, or Robert Marshland, the co-respondent in this cause, and that I find no answer has been filed by them or on their behalf, or by or on behalf of either of them. Sworn at, &c. (Signed) R. C. B. or A. B. [If the respondent, being a husband, has filed an answer to his wife’s petition for alimony pendente lite, the affi- davit of seasrch for answer should conclude thus : — “ I find no answer, excepting an answer to the petition for alimony herein, has been filed by him, or on his behalf.”] Form 48 . Affidavit of Search for Reply. [Commencement as in Form 46.] I, R. B., clerk to William White, of 66, Frederick’s Place, Old Jewry, solicitor for the respondent (follow the above form down to the words “High Court of Justice,” inclusive), to ascertain whether or not any reply had been filed by or on behalf of Timothy Trowse, the petitioner SUITS FOR DISSOLUTION OF MARRIAGE. 373 in this cause, and that I find no reply has been filed by him, or on his behalf. Sworn at, &c. (Signed) R. B. It must be borne in mind that by rule 123, “ The time fixed by these rules and regulations for the performance of any act, or for any proceeding in a cause, shall in all cases be exclusive pf Sundays, Christmas Day, and Good Friday. Therefore, every one of these days must be allowed for, before searching for appearance or answer. The day of service is included in the time allowed for entering an appearance. Therefore, supposing the time specified in the citation for appearance is eight days, the search may be made on the ninth day after service, exclu- sive of Sundays, Christmas Day and Good Friday. On the other hand, the day of service is excluded from the time allowed for filing answer; therefore the search should not be made until the twenty-third day after service, exclusive of Sundays, Christmas Day and Good Friday. The application for the registrar’s certificate is in the following form, which can be obtained in the Divorce Registry free of charge. Form 49. [ Title as in Form 32.] The petitioner hereby applies for the certificate of the registrar that the proceedings in the cause are correct, and the pleadings in order. The cause is undefended. The issues to be tried by a jury; the damages to be assessed by a jury. Dated day of 19 . Hearing or Trial. Time for searching. Appearance, time for search for. Answer. Ibid. Registrar’s certificate. Form of. Solicitor for the petitioner. 374 PRACTICE IN MATRIMONIAL SUITS. Hearing or Trial. Certificate of marriage necessary to be filed with papers. Hearing. Trial. Notice to opposite party where case tried by jury. Ibid, where case heard before Court itself. Party who has appeared, but filed no answer, entitled to notice. Copy of notice of setting down for trial to be filed in the registry. Registrar’s certificate necessary in Before the registrar’s certificate can be obtained that the pleadings are in order, it is necessary to obtain a copy of the marriage certificate of the parties, which together with the registrar’s certificate is filed in the Registry with the other papers in the cause. As soon as the registrar’s certificate has been obtained, the cause can be set down for hearing or trial. In the Divorce Division, when a cause is tried before a judge sitting alone without a jury, it is termed a “ Hearing.” When, on the other hand, a cause is tried by a judge sitting with a jury, it is termed a “ Trial.” By rule 44, “ In cases to he tried by a jury, the peti- tioner, after the expiration of eight days from the delivery of copies of the questions for the jury to the opposite parties, or from alteration or amendment of the same . . . shall file such questions as finally settled in the registry, and at the same time set down the cause as ready for trial, and on the same day give notice of his having done so to each party for whom an appearance has been entered.” [ As to questions for jury, see post, pp. 379 — 381.] By rule 45, “In cases to be heard without a jury, the petitioner shall, after obtaining the registrar s certificate , set the cause down for hearing, and on the same day give notice of his having done so to each party in the cause for whom an appearance has been entered.” It will be observed that parties who have entered an appearance, but have filed no answer, are entitled to notice under the above two rules. And by rule 47, “ A copy of every notice of the cause being set down for trial or hearing shall be filed in the registry, and the cause shall come on in its turn, unless the Court shall otherwise direct.” The registrar’s certificate is as necessary where suits have been consolidated as in any other case. SUITS FOR DISSOLUTION OF MARRIAGE. 375 When the cause is ripe for trial, fill up the following form of praecipe which can be obtained at the Registry, room No. 43. Hearing or Trial. consolidated suits. Form 50. Praecipe setting down Cause for Hearing or Trial. [Title as in Form 32.] Petitioner hereby sets this cause down for hearing before Preecipe the Court itself {or as the case may he ) . Defended {or undefended). For dissolution of marriage. Dated the day of 19 Solicitor for the petitioner. By rule 113, all notices required by the rules or by the Notices, practice of the Court must be in writing, and signed by the party or his or her solicitor . The notice required by rules 44 and 45 {supra) to Suggested be given to the opposite parties should be more or less in the following form: — Form 51. setting down cause for hearing or trial, form of. Notice of having set down Cause for Hearing or Trial. Notice of hearing or [Title as in Form 32.] trial - Cause No. Take notice that this cause was this day set down for hearing or trial before the Court itself {or as the case may he). Dated the day of ,19 Solicitor for the petitioner. To Solicitor for the [But it has been held by the Court of Appeal that a letter But any form to the solicitor for the opposite party, telling him that the cl^r is U ^ cause has been set down, is a sufficient notice of trial, sufficient. 376 PRACTICE IN MATRIMONIAL SUITS. Hearing or Trial. Forms to be left at the registry. Pleadings amended subsequent to certificate. Fees. Setting down for hearing. Consolidated causes. Bill of costs, how made out. Respondent may set down cause for hearing, if petitioner fails to do so. although no formal notice may have been given, as in Form 51: Fluister v. Fluister and Hulton, (1897) P. 22; 66 L. J. P. 33.] If the case is defended, both the above forms must be left at the Divorce Registry (room No. 38) with the fees. In undefended cases the praecipe (No. 50) only need be left. If the pleadings have been amended subsequent to the date of the registrar’s certificate, they must be submitted to the registrar again. FEES. Setting down cause Drawing decree Filing any document [$ee also post, pp. 568 — 603.] £ 8. d. 2 0 0 10 0 0 2 6 In consolidated causes a further fee of 5s. is paid for each order. Where cases have been consolidated, the solicitor to either party need not make out two separate bills. That is to say, although the wife is “petitioner” in one cause and respondent in the other, her solicitor need not make out a bill of costs against her in each character. It will be sufficient for him to make out one bill, describ- ing her all through as “ the wife” And the same with respect to the solicitor for “ the husband ” By rule 46, “If the petitioner fail to file the questions for the jury or set down the cause for trial or hearing, or to give due notice thereof for the space of one month, after the pleadings are complete, either of the respondents entitled to be heard at such trial or hearing may file the questions for the jury, and set the cause down for trial or hearing, and shall on the same day give notice of his having done so to the petitioner, and to each of the other parties to the cause for whom an appearance has been entered.” SUITS FOR DISSOLUTION OF MARRIAGE. 377 “ One month after the pleadings are complete,” must be understood to mean “ one month after the date of the certificate .” The majority of causes are heard before the Court itself. But where the petition contains a claim for damages, the cause must be tried by a jury, the Court being prohibited from itself assessing damages by sect. 33 of the Matri- monial Causes Act, 1857; and this rule applies to “undefended” as well as to defended cases. ( See ride 205, ante, p. 368.) Unless a special jury is desired, a case in which damages are claimed is heard before a judge sitting with a common J U1 T- If a special jury is desired, it must be obtained by summons. (See post, tit. “ Practice as to Motions and Summonses p. 511.) Where there is no claim for damages in a petition, the usual practice is for the cause to he heard before the Court itself; that is, by a judge sitting alone without a jury. (See rule 205, ante, p. 368.) But either party to a suit may in every case, whether damages are claimed or not, apply by summons (see post, tit. 11 Practice as to Motions and Summonses p. 511) for an order that the case may be tried by a jury. By rule 41, Whenever the issues of fact in a cause are to be tried by a jury, the questions of fact raised by the pleadings are to be briefly stated in writing by the peti- tioner and settled by one of the registrars.” If an order for a jury is obtained by the respondent or the co-respondent, the questions for the jury will never- theless be brought in by the petitioner. No questions for the jury are required in undefended causes, as there is no issue to try, and the jury is only required for the purpose of assessing damages. Where an undefended cause is to be tried by a jury, the application for the registrar’s certificate, prsecipe, and notice of setting down cause are left in the registry in Hearing or Trial. ‘ ‘ One month after pleadings complete,” meaning of. Cause, how heard. When damages claimed must be tried by j un- common jury. Special jury must be obtained by summons. No damages claimed. Cause heard before Court itself. Application for trial by a jury where no damages claimed must be by summons. Questions of fact for jury. Questions for jury brought in by petitioner. Not required in undefended cause. Undefended cause to be tried by jury; practice as to setting down. 378 PRACTICE IN MATRIMONIAL SUITS. Hearing or Trial. Petitioner failing to prepare questions, respondent or co-respondent may do so. Defended cause to be tried by jury. Settling questions In registry. Copy of questions to be delivered to parties entitled to be beard. How served. Setting down cause for trial after settling questions, where no objection raised. Ibid. Where questions objected to. Resettling- questions. Fees. Special jury. Ibid, common jury. the same manner, and the same fees are paid, as in the case of an undefended cause tried before the Court itself. By rule 42, “ Should the petitioner fail to prepare and deposit the questions for settlement in the registry within fourteen days after the pleadings are complete (see rule 205, ante, p. 368), either of the respondents on whose behalf such questions have been raised shall be at liberty to do so.” Where a defended cause is to be tried by a jury, the party applying for the registrar’s certificate leaves at the Divorce Registry (room No. 38), together with his appli- cation, the questions for the jury in draft to be settled by the registrar, and he should inquire when to call for them. A fee of 10s. is charged for settling. By rule 43, “ After the questions have been settled by the registrar, the party who has deposited the same shall deliver a copy thereof as settled to each of the other parties to be heard on the trial of the cause.” This does not include a party who has appeared but has filed no answer. A plain copy is delivered to the solicitors for the parties, or left at the address for service, if they appear in person. If no objection be taken by the other side within eight days after such copy has been served as above, the peti- tioner can file at the Divorce Registry (room No. 38) the draft questions as settled, together with a copy engrossed on paper (parchment is no longer necessary ), and set the cause down. If any objection is raised by the other side the questions have to be considered and finally settled by the registrar, for which purpose an appointment must be obtained. A further fee of 10s. is charged if the questions have to be resettled in consequence of any amendment in the pleadings. A special jury costs thirteen guineas, each of the jury- men and the sheriff being entitled to a fee of one guinea. On the other hand, a common jury costs one pound two SUITS FOR DISSOLUTION OF MARRIAGE. 379 shillings and sixpence, the fee for each juryman being one shilling only, and ten shillings and sixpence for the sheriff. Where a jury is discharged without giving a verdict they are entitled to no fees, unless the parties consent. The sheriff’s fee is payable in any case. Form 52. Questions of Fact for the Jury. [Title as in Form 32.] [In our supposititious case damages are claimed against Robert Marshland ( Form 5, ante, p. 295). If the respondent had filed no answer, and the co-respondent had simply traversed the charges ( or vice versa), there would in either case be but two questions ;] 1 . “ Whether the co-respondent, Robert Marshland, has committed adultery with Charlotte Trowse, the respondent; ” or, “ Whether the respondent, Charlotte Trowse, has committed adultery with Robert Marshland, the co-respondent.” 2. What amount of damages (if any) should be paid by the co-respondent, Robert Marshland, in respect of the adultery (if any) by him committed with Charlotte Trowse, the respondent. [If both respondent and co-respondent had answered, simply traversing the charges of adultery, the questions ivould then be :] 1 . Whether Charlotte Trowse, the respondent, has com- mitted adultery with Robert Marshland, the co- respondent. 2. Whether Robert Marshland, the co-respondent, has Hearing or Trial. Jury discharged without verdict. Questions for jury, form of. Respondent filing no answer ; co-respondent merely traversing the charge of adultery or vice versa. Respondent and co- respondent pleading simple traverse. 380 Hearing or Trial. Two co- respondents, both pleading simple traverse. Where counter- charges made. PRACTICE IN MATRIMONIAL SUITS. committed adultery with Charlotte Trowse, the respondent. 3. What amount of damages, &c. (as above). [If in our supposititious case a supplemental petition (Form 28, ante, p. 332) had been filed , there would then be a second co-respon- dent, Benjamin Buckenham ; and if damages had been claimed against him as well as against Robert Marshland (see Form 5, ante, p. 295), and both co-respondents had answered simply traversing the charges, the questions would then be :] 1 . Whether the respondent, Charlotte Trowse, has com- mitted adultery with the co-respondent, Robert Marshland . 2. Whether the co-respondent, Robert Marshland, has committed adultery with Charlotte Trowse, the respondent. 3 . Whether the respondent, Charlotte Trowse, has com- mitted adultery with the co-respondent, Benjamin Buckenham. 4. Whether the co-respondent, Benjamin Buckenham, has committed adultery with Charlotte Trowse, the respondent. 5. What amount of damages, &c. (as above). 6. What amount of damages (continue in the same words as paragraph 5, substituting “ Benjamin Buckenham” for “Robert Marshland”). [Where countercharges are made, as in Forms 33, 34, and 35, ante, pp. 344 — 350, some or all of the folloiving questions unit be also neces- sary : — ] 1. Whether Timothy Trowse, the petitioner, has com- mitted adultery. SUITS FOR DISSOLUTION OF MARRIAGE. 381 2. Whether Timothy Trowse, the petitioner, has been guilty of cruelty towards the respondent, Charlotte Trowse. 3. Whether Timothy Trowse, the petitioner, has con- doned the adultery (if any) committed by the respondent, Charlotte Trowse, with the co-respon- dent, Eobert Marshland (or “ Benjamin Bucken- ham,” or as the case may he). 4. Whether Timothy Trowse, the petitioner, has con- nived at the adultery (if any) (dc., as in Ques- tion 3). 5. Whether the petitioner, Timothy Trowse, and the respondent, Charlotte Trowse, are acting in collu- sion. [Other questions can easily be framed from the above to meet any other countercharges .] [If charges of adultery had been made against Charlotte Trowse with persons other than those made co-respondents , the question would then he :] “ Whether the respondent, Charlotte Trowse, has com- mitted adultery with persons other than Eobert Marshland and Benjamin Buckenham, the co- respondents.” The following costs will probably be allowed on taxation: — Petitioner's Solicitor. £ s. d. Attending at Somerset House, searching and arranging for copy of marriage certificate . . . . . .068 Hearing 1 or Trial. Charge of adultery with persons other than co • respondents. Costs allowed on taxation. Petitioner’s solicitor. [This is not done in the Divorce Registry , but in the Registrar-General’s Department. Door on the left hand under the arch , immediately on 382 Hearing or Trial. Solicitor to opposite party. Dismissing petition for want of prosecution. PRACTICE IN MATRIMONIAL SUITS. leaving the Strand. Hours , 10 to 4. Fees 'pay- able : Search , Is.; copy, 2s. 6d.; and stamp, Id.'] Attending applying for registrar’s certifi- £ cate ....... 0 Attending setting cause down . . 0 Notice to respondent (or co-respondent, or both, or as the case may be, for each notice) copy and service . . . 0 Copy 0 Drawing questions for jury . . . 0 Attending leaving same for settlement . 0 Attending for questions after settlement . 0 Copy and service on solicitor for respon- dent (or as the case may be) . . . 0 Drawing notices to produce and admit, or to inspect, per folio . . . . 0 Copy and service . . . . . 0 Respondent, Co-respondent, or Intervener's Solicitor. Perusing questions . . . . 0 Approving and returning same . . 0 Perusing notice to produce and admit . 0 Perusing notice to inspect . . . 0 [And, of course, all fees paid out of pocket, see post, pp. 568 — 603.] S. d. 6 8 6 8 4 0 1 0 10 0 6 8 6 8 6 8 1 0 4 6 1 0 6 8 6 8 6 8 If the petitioner does not prosecute the proceedings with due diligence, either the respondent or the co-respondent can apply for the petition to be dismissed, for want of prosecution; or the petitioner may apply himself to have it dismissed. [An application to dismiss a petition for dissolution, whether by consent or not, must now be made by summons before a registrar, and not by motion in open Court: Slater v. Slater and Bolderson (1900), 69 L. J. P. 48.] SUITS FOE DISSOLUTION OF MARRIAGE. 383 All the pleadings, however, up to the point at which the petition was dismissed, remain filed in the Divorce Registry and are not given out. When a petition has been dismissed as above, the registrar will make such order as to costs as may be right. [ There is an appeal from the registrar to the judge in chambers. See post, tit. “ Practice as to Motions and Summonses ,” p. 511; “ Practice as to Costs,” p. 540.] By rule 193, “ When an order has been made for the dismissal of a petition on payment of costs, the cause will not be removed from the list of causes in the Court books without an order of one of the registrars, to obtain which it must be shown to his satisfaction that the costs have been paid.” [Where a petition so dismissed still remained on the re- served list, the Court refused to pronounce a decree on a subsequent petition filed by the same petitioner: Onslow v. Onslow, Jones and Campbell (1889), 60 L. T. 680.] Rule 48 provides, “ That no cause is to be called on for trial or hearing until after ten days from the setting down and notice thereof, save with the consent of all parties.” A list of causes set down is printed ten days before the commencement of each sitting, and copies can be obtained at the Royal Courts. The cause list is finally closed ten days before the sitting of the Court, and no case can be afterwards inserted therein, except by leave of a judge, which can be applied for in open Court. These applications are ex parte and are not necessarily made on the regular motion days ( as to which , see post, tit. “ Practice as to Motions and Sum- monses,” p. 511). They are frequently made at the sitting of the Court, immediately before or immediately after the adjournment for luncheon, or when the Court rises for the Hearing or Trial. Petition dismissed. Pleadings l'emain filed. Where dis- missed on payment of costs, costs must be paid before cause can be removed from list. Ten days to intervene before cause is tried. Cause list. Case omitted from printed list. 384 PRACTICE IN MATRIMONIAL SUITS. Hearing or Trial. Title of cause must be correct. Solicitors should see this is so. Term list. Daily list. Solicitors should watch lists day by day. Cause called on ; parties failing to appear. day. The application usually is that the case may be placed at the bottom of the list. [The Court will not allow cases to be proceeded with, either where the names of the parties are improperly omitted from the title of the cause ( Onslow v. Onslow ,, Jones and Camp- bell (1889), 60 L. T. 680); or where the names of the parties are improperly retained in such title after they have been formally dismissed from the proceedings: Connemara v. Connemara, (1892) P. 102; 61 L. J. P. 96; 66 L. T. 592.] It is therefore the duty of the petitioner’s solicitor to see that the cause is correctly described, both in the official term list and in the daily cause list. [In an undefended case, where the names of the co-re- spondents were omitted, the Court refused to allow the case to be proceeded with on the day on which it came on for hearing, but allowed it to be put into the list for next day, properly described: Onslow v. Onslow, Jones and Campbell (1889), 60 L. T. 680.] Besides the official list published as above, ten days before the sittings of the Court, called the “term list,” a list is printed every day, called the “ daily list,” showing the cases to be taken the next day, and published by being posted outside the Royal Courts, at Somerset House, in the Temple, and at other places . The daily list is not published until the afternoon, and no notice of its contents is sent to any of the parties. It is therefore absolutely necessary for solicitors to watch the lists, day by day, to ascertain when their cases are coming on. This is doubly necessary whenever there is a chance of two Courts sitting to hear matrimonial causes at the same time, which very frequently happens when un- defended cases are being taken, especially at the beginning of a term. Every cause is called on in its proper turn according to the official lists, and if, when so called, the parties do not appear, the judge orders the cause to be struck out; unless, SUITS FOR DISSOLUTION OF MARRIAGE. 385 as not infrequently happens, one of the counsel in the case gives some satisfactory explanation to the Court, in which case it is usually allowed to stand over for a reasonable time. When a cause is once struck out, it can only be restored to the list on an application made by counsel in open Court, which, unless made with the consent of all parties, must be supported by an affidavit. [This application may be made at any time in the same way as an application to insert a cause in the list, ante, p. 383 .] Besides the above-mentioned two lists of causes, there are also a reserved list, containing cases standing over by order of the Court, or by consent, and a list of “ Part Heard” causes. If it is desired to place a cause in the reserved list, application must be made to the Court by motion or summons. It is frequently, generally when all parties consent, made in the same way as in the case of an appli- cation to reinstate a cause after striking out (supra). A case can be removed from the reserved list and replaced in the list of causes for trial, by the petitioner’s solicitor giving ten days’ notice to the other parties, which should be headed in the cause, and be more or less in the following form, though any form of notice which is clear and definite, and is correctly dated, will suffice: — Form 53. “ Take notice that I have this day removed the above cause from the reserved list of causes standing over, and have replaced it in the list of causes for hearing. “ July 29th, 19 . “ B. & J, “ Solicitors for Petitioner.” 25 Hearing or Trial Cause struck out : reinstate- ment. Lists of causes standing over and part heard. Placing case on reserved list. Removing case from reserved list. Notice, form of. D.M.C. 386 PRACTICE IN MATRIMONIAL SUITS. Hearing or Trial. Copy to be filed in Divorce Registry. Part -heard cause, further hearing. Removing cause from defended to undefended list. Ibid, unde- fended to defended list. Altering mode of trial. Dispensing with jury by consent. Postponement of cause already in list. Stay of proceedings A copy of this notice must be filed in the Divorce Registry, and the usual fee for filing all documents, 2s. 6d., paid. When it is desired to proceed with a part-heard cause, notice must be given to the clerk of the rules, at the Court, that the parties are ready to proceed. The cause will then be placed in the list for hearing on the first day appointed by the Court for hearing similar causes, unless some other case has been specially fixed to be taken on that day. If all the parties defending desire to withdraw their defence in a cause already in the defended list, a summons should be taken out before the judge in chambers for leave to withdraw the answer. If the order is made, the cause will then be transferred to the undefended list. An application to transfer a cause from the list of unde- fended to the list of defended causes must also be made by summons before the judge in chambers. The same rule applies to an application that a case may be tried by a jury when it has been entered for hearing before the Court itself. When it is desired to dispense with a jury by consent, the usual course is simply to ask the judge, when the case is called on, to dismiss the jury. A cause entered in the list may, with the consent of all parties, be marked “ Postponed till next sittings.” This is done by leaving with the clerk of the rules, at the Court, a notice to that effect, with the consent of all parties indorsed upon it. Otherwise application to postpone the hearing of a cause already in the list must be made by summons in chambers or motion. (Motions to postpone hearing are often, if the circum- stances warrant it, for the convenience of counsel heard at irregular times, as in the case of the applications men- tioned, ante, pp. 383, 384.) Applications to stay proceedings on the ground of SUHS FOR DISSOLUTION OF MARRIAGE. 387 non-payment of costs ( see tit. “ Practice as to Costs ”) as ordered, or on other grounds, when the cause is already in the printed list ( at all events, unless it is cer- tain not to be reached for a long time, and even that is very doubtful ), will not be dealt with by the registrars. In every such case the application must be made on summons to a judge in chambers. A stay of proceedings is removed by giving notice to the clerk of the rules, and also to the registry, and the case is then entered at the bottom of the list, unless otherwise ordered. Where evidence is ordered to be taken before a com- missioner or examiner (as to which, see tit. “ Practice as to Evidence p. 604), neither the issue of the commis- sion nor the order for examination operates as a stay of the hearing of the cause, unless such stay is ordered at the time the application for the order for such commission or examination is applied for. If a stay is ordered it is removed on the return of the commission or examination. No notice of this return is required to be given. The Court will not allow causes to remain in the printed list for an indefinite time. Therefore it has for many years been the practice to call over all causes that have been in the reserved and part-heard lists for twelve months on some motion day. (As to what are “ motion days," see tit. “ Practice as to Motions and Summonses p. 511.) Before doing so, a notice is sent from the Court to the solicitors, or petitioner suing in person, which should be headed in the cause, and be more or less in the following form: — “ Take notice that causes in the reserved and part-heard lists, which have been standing over for more than a year, will he called over on the 6th day of November, 19 .” 25 (2) Hearing or Trial. when cause already in printed list. Application must be to judge in chambers. Stay, how removed. Commissions, &c. to take evidence do not operate as stay, unless asked for at time of applying for same. Causes standing in the reserved and part- heard lists for twelve months. Called over on motion day during Michaelmas sittings. Notice of calling over. 388 PRACTICE IN MATRIMONIAL SUITS. Hearing or Trial. If no one appears at calling over, cause struck out. Hearing or trial. Decree. Decree and finding of jury to be entered and signed by the registrar. Decree nisi drawn up by registrars. Hearing suits in camera. The causes in the reserved and part-heard lists are called over one by one slowly, and if no one appears to make any application with respect to them they are struck out. When the cause comes on it is heard to the end, and disposed of either by the decision of the judge or the verdict of the jury, as the case may be. If the petitioner is successful a decree is pronounced, which in the case of “ dissolution of marriage ” is a decree nisi, to be made absolute after six months. (See post, p. 487.) By rule 49, “ The registrar shall enter in the Court book the finding of the jury and the decree of the Court, and shall sign the same.” The decree nisi is drawn up by the registrars. ( The practice as to drawing up and making absolute decrees, service of same, what documents are retained in the registry after decree, &c., is fully dealt with, tit. “ Practice as to Decree and Intervention,” p. 487.) [Although it is the almost invariable practice to hear suits for dissolution in open Court, evidence tendered in a suit for dissolution may also be heard in camera, when its nature is such that justice cannot be done if it be heard in open Court: Bruce v. Bruce, (1903) P. 144; 72 L. J. P. 51; 88 L. T. 573.] ABATEMENT OF SUIT. Death of petitioner or respondent. A suit abates by the death either of the petitioner or the respondent. In such case the solicitor for the deceased party should give notice of the fact to the Divorce Registrars, more or less in the following form, though no special form is necessary provided the notice is clear, and unmistakably gives the correct date of the death of such party: — To face p. 389. New Rules of the Supreme Court (Poor Persons), dated April 28th, 1913, are printed on p. 767. SUITS FOR DISSOLUTION OF MARRIAGE. 389 Form 54. “We hereby give you notice that Timothy Trowse, the petitioner herein, died on the 25th day of Novem- ber, 19 , whereby this cause has abated. “ Dated November 26th, 19 . “ (Signed) Brown & 'Jones, “225, Coleman Street, E.C. “ Solicitors for the petitioner. “ To the Registrars of the Divorce Registry.” [If a co-respondent dies pending suit, a motion should be made to strike his name out of the proceedings: Sutton v. Sutton and Peacock (1863), 32 L. J. P. 156. The Court made a decree absolute notwithstanding affidavits that both respondent and co-respondent were dead when not satisfied on the evidence:- Dering v. Dering and Blakeley (Queen’s Proctor and others intervening) (1868), L. R. 1 P. &D. 531; 19 L. T. 48. See also as to abatement by death: Grant v. Grant and Bowles and Pattison (1862), 2 S. & T. 522; 31 L. J. P. 174; Ling v. Ling and Croker (1865), 4 S. & T. 99; 34 L. J.P. 52; 13 L. T. 251; Hall v. Hall (1864), 3 S. & T. 390; Brocas v. Brocas (1861), 2 S. & T. 383; 30 L. J. P. 172; 5 L. T. 137.] Suits in forma pauperis are regulated by the following rules: — By rule 25, “ Any person desirous of prosecuting a suit in forma pauperis is to lay a case before counsel, and obtain an opinion that he or she has reasonable grounds for proceeding.” It has been for many years the practice for counsel, if they think fit, to conduct cases for parties suing in forma Abatement of Suit. Notice to divorce registrars. Co-respon- dent dying pending suit. SUING IN FORMA PAUPERIS. Case for counsel. Counsel conducting cases for. 390 PRACTICE IN MATRIMONIAL SUITS. Suing in Forma Pauperis. Order of judge. Interpretation of rule 26 by- Lord Hannen. Application in forma pauperis to be made to registrar. Case for counsel, contents of. Husband applicant. pauperis , in person, without the intervention of a solicitor; but it is a practice very much to be deprecated, and never to be resorted to, unless justified by the extreme poverty of the client. By rule 26, “No person shall be admitted to prosecute a suit in forma pauperis without the order of the judge ( but see rule 208); and to obtain such order the case laid before counsel and his opinion thereon, with an affidavit of the party or of his or her proctor, solicitor, or attorney, that the said case contains a full and true statement of all the material facts, to the best of his or her knowledge and belief, and an affidavit of the party applying as to his or her income or means of living, and that he or she is not worth 2 51., after payment of his or her just debts, save and except his or her wearing apparel, shall be produced at the time such application is made.” Some years ago the late Lord Hannen held that anyone whose total income did not exceed H. a week was within this rule, and this amount still holds good, unless varied by a judge for special reasons. By rule 208, “Applications for leave to prosecute or defend a suit in forma pauperis 'may hereafter be made to one of the registrars, who will make such order thereon as he may see fit or refer the application to the Court.” Buies 26 and 208 must of course be read together. The case for counsel should set out all the facts relied upon by the pauper in simple language, as little technical as possible. It is in no sense a formal document, and the following form is merely a suggestion, not a precedent. All the technical words required, such as “ lawfully married,” “cohabiting together,” &c., &c., must be used in the petition, but are not necessary in the case. The following forms assume that the wife is the appli- cant, but where the applicant is the husband the pro- ceedings are analogous: — SUITS FOR DISSOLUTION OF MARRIAGE. 391 Suing FORM 55. in Forma Pauperis. Case for Counsel on behalf of a Pauper. The applicant, Henrietta Horning (then Henrietta Suggestion Halesworth, spinster), was married to her husband, Harold wifeappli- Horning, on February 10th, 1900, at the parish church of cant - St. Margaret, Lowestoft, in the county of Suffolk. After the marriage the parties lived together first at Lowestoft, for a short time only, and afterwards at Forest Gate, London, up to the month of May, 1903. There have been two children issue of the marriage — a boy, Henry Horning, born December 24th, 1900, and a girl, Harriett Horning, born July 30th, 1902. The parties lived happily together for about eighteen months, when the husband took to habits of intemperance, and frequently assaulted, beat his wife severely, gave her black eyes, and kicked her, when he was drunk. On one occasion, just after the birth of her second child, in August, 1902, he showed her a loaded pistol, and threatened to shoot both of them. On one occasion, in the same month, he pulled her out of bed and kicked her several times; and on another occasion, in November of the same year, he turned her out into the street in her nightdress, and she had to take refuge with a neighbour. His language whenever he had been drinking was violent and abusive, often threatening, and generally filthy and obscene. All this happened whilst the parties were residing at Forest Gate. In the spring of 1903 he finally left her, and has ever since been living in adultery at East Dereham, in Norfolk, with a woman named Beatrice Bilney. The applicant cannot remember the exact date at which her husband left her, as she was at the time seriously ill in the infirmary of the Stratford Union, after a miscarriage, the result of a kick given her by her husband; but it was certainly not later than May, 1903. 392 PRACTICE IN MATRIMONIAL SUITS. Suing in Forma Pauperis. Opinion. Case for counsel. Form of indorsement. The date of her admission to the infirmary can be easily ascertained . Since her husband left her she has resided with her two children at 537, East Street, Walworth, and has entirely supported herself and them by going out as a charwoman. Her husband sent her 21. whilst she was in the infirmary in May, 1903; since which time she has received no assistance from him whatever. Counsel will please advise whether the applicant has sufficient grounds on which to petition for a dissolution of her marriage. Opinion. I am of opinion that the applicant has a good case on which to petition for a dissolution of her marriage. A. B. 5, Court, Temple . July 30th, 19 The case and opinion of counsel should be endorsed thus: — Form 56. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) In the matter of the application of Henrietta Horning for leave to petition in forma pauperis for a dissolution of her marriage. Case and Opinion of Counsel. Brown & Jones, 225, Coleman Street, E.C., Petitioner’s Solicitors. Or, In person [ and address within three miles of the General Post Office ]. SUITS FOR DISSOLUTION OF MARRIAGE. 393 The petition and all subsequent pleadings in pauper causes should have the words “ in forma pauperis ” Written on some part of the indorsement. By rule 209, “ The affidavit required by rule 26, if application is made by a wife to prosecute a suit against her husband in forma pauperis , shall state to the best of her knowledge and belief the amount of income or means of living of her husband.’ ’ Suing in Forma Pauperis. “ In forma pauperis ” should be written on indorsement of petition and all subsequent pleadings. Wife petitioner. Form 57. Affidavit required by Rule 26. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) Affidavit as to means ; wife applicant ; form of. In the matter of the application of Henrietta Horning for leave to petition in forma pauperis for a dissolution of her marriage. I, Henrietta Horning, of 537, East Street, Walworth, in the county of London (the lawful wife of Henry Horning), make oath and say as follows: — 1. That I am the applicant mentioned in the case and opinion of counsel hereunto annexed, and marked A. ( the case is marked bp the commissioner before whom the affidavit is sworn), which contains a full and true statement of the principal acts of cruelty and of the desertion, and also a true statement (to the best of my knowledge, information and belief) of the acts of adultery upon which I rely to obtain a dissolution of my marriage. 2. That I have no means of support, save and except my occupation as a charwoman, by which I have earned, since my desertion by my husband, as set forth in the said case, an average of 10s. a week, 394 PRACTICE IN MATRIMONIAL SUITS. Sum g together with a certain amount of food, which I in Forma , , e , Pauperis. Value at 5s. a week. 3. That otherwise I am entirely without means, and am not worth twenty-five pounds after payment of all my just debts, save and except my wearing apparel. 4. That I know of my own knowledge that the said Henry Horning has no means whatever, and I am informed and verily believe that he is out of employment, and that he is now, and has for some time past been, living on the earnings of Beatrice Bilney, the woman with whom (as alleged in my said case) he is now living in adultery. Sworn, &c. (Signed) Henrietta Horning. Husband petitioner, wife defending in form A pauperis. Summons necessary. Wife petitioner, husband defending in forma pauperis. Affidavit necessary. Affidavit of husband, contents of. Case and affidavit to be left at By rule 210, “When a husband has been admitted to prosecute a suit against his wife in forma pauperis , the wife may apply for an order that she be at liberty to proceed with her defence in forma pauperis on production of an affidavit that she has no separate property exceeding 2 51. in value after payment of her just debts.’ 7 This application must be made by summons. By rule 211, “When a wife has been permitted to prosecute a suit against her husband in forma pauperis , the husband may apply for leave to proceed with his defence in forma pauperis on production of an affidavit as to his income or means of living, and showing that besides his wearing apparel he is not worth 2 51. after payment of his just debts.” This application must be made by summons. Where an affidavit, as in Form 57, is made by a hus- band either as petitioner or respondent in forma pauperis, he is not required to say anything as to his wife’s means. The case and affidavit are left at the Divorce Registry, when the applicant should inquire when to call and fetch SUITS FOR DISSOLUTION OF MARRIAGE. 395 them. If approved by the registrar the order will be made, and the petitioner may proceed in forma pauperis. The subsequent proceedings are conducted as in an ordinary case for dissolution of marriage, except that no fees are charged. Where a suit for dissolution has been commenced in the ordinary way, and the petitioner desires to continue the proceedings in forma pauperis , he or she must apply for leave to do so by summons, which must be served on all the parties who have appeared. Where a suit for dissolution has been commenced in the ordinary way, either the respondent or co-respondent may apply for leave to defend the suit in forma pauperis. The practice in such a case is the same as on an applica- tion to sue in forma pauperis. Counsel and solicitors are not assigned to paupers in the Divorce Court. Where an order to sue or proceed in forma pauperis has been obtained by fraud or misrepresentation, the party obtaining such order will be dispaupered. Proceed by summons. Suing in Forma Pauperis. Divorce Registry. Registrar’s order, how obtained. Subsequent proceedings, how conducted. Suit com- menced in ordinary way, petitioner desiring to continue in forma pauperis. Ibid, respon- dent or co- respondent desiring to defend in forma pauperis. Counsel and solicitors not assigned by Court. Dispauper- [With respect to costs in pauper causes, see ante, p. 245, Costs. and post, pp. 568 — 603.] This is a convenient and summary mode of proceeding, petition often resorted to for the adjudication of any incidental --y- p subject which may arise during or after the progress of a suit. For instance, the question of jurisdiction is often determined by an appearance under protest, and an act on petition filed thereon. By rule 22, “ If a party cited wishes to raise any ques- Appearance tion as to the jurisdiction of the Court, he or she must under P rote8t - enter an appearance under protest, and within eight days 396 PRACTICE IN MATRIMONIAL SUITS. Act on file in the registry his or her act on petition in extension - of such protest, and on the same day deliver a copy thereof to the petitioner. After the entry of an absolute appear- ance to the citation a party cited cannot raise any objec- tion as to jurisdiction.” [See Garstin v. Garstin (1865), 4 S. & T. 73; 34 L. J. P. 45; but it does not follow that the question of jurisdiction may not be raised by the Court, or the Queen’s Proctor, or some other intervener. It was decided in 1893 that the Court might allow a question of domicil to be raised at the hearing, if the evidence pointed to a doubt as to the juris- diction of the Court, although the question had not been previously raised on the pleadings or in any other way: Parkinson v. Parkinson and Cabot (1893), 69 L. T. 53. But the usual course in such a case is to order the papers to be sent to the King’s Proctor.] Form 58. Entry of an Appearance under Protest to the Jurisdiction of the Court. the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) A. B., petitioner, against C. B., respondent, and R. S., co-respondent. The respondent C. B. ( or the co-respondent R. S.) appears in person (or C. D., the solicitor for C. B., the respondent (or R. S., the co-respondent), appears for the said respondent or co-respondent), under protest, to the jurisdiction of the Court. [Here insert the address required within three miles of the General Post Office . ] Entered this day of , 19 Appearance under protest, form of. In SUITS FOR DISSOLUTION OF MARRIAGE. 397 Where a party has appeared under protest as above, he or she should, within eight days therefrom, file his or her act on petition {to be signed by such party or his or her solicitor ), and on the same day deliver a copy to the peti- tioner or his or her solicitor. The petitioner must file his or her answer within eight days from the day of the delivery of the act, and all sub- sequent pleadings must be delivered within eight days from the day of the service of the last pleading. Where no appearance under protest as above has been entered, hut merely an ordinary appearance, then by rule 56, “Any party to a cause who has entered an appearance may apply on summons {to one of the regis- trars ), to be heard on his petition touching any collateral question which may arise in a suit.” By rule 57, “ The party to whom leave has been given to be heard on his petition shall within eight days file his act on petition in the registry, and on the same day deliver a copy thereof to such parties in the cause as are required to answer thereto.” And by rule 58, “ Each party to whom a copy of an act on petition is delivered shall within eight days after receiv- ing the same file his or her answer thereto in the registry, and on the same day deliver a copy thereof to the opposite party, and the same course shall be pursued with respect to the reply, rejoinder, &c., until the act on petition is concluded.” Act on Petition. Party appearing under protest. Act on petition, when to be filed. Ibid, answer and subse- quent pleadings. Party not appearing under protest. Summons for leave to file act on petition. Time for filing after leave obtained. Ibid. answer and subsequent pleadings. [0/ the following two forms, Form 59 is official, and Form 60 derived from the pleadings in a case which ivas heard some years ago.'] 398 PRACTICE IN MATRIMONIAL SUITS. Act on Petition. Form 59. Act on petition, form of. Act on Petition. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) A. B., against C. B., and R. S. On the day of 19 A. B., the petitioner (or C. D., the solicitor of A. B., the petitioner), alleged that (Here state briefly the facts and circumstances upon which the petition is founded.) Wherefore the said A. B. (orC. D.), referring to the affidavits and proofs to be by him exhibited in verification of what he so alleged, prayed that (Here set forth the prayer of the petitioner.) (Signed) A. B. or C. D. Ibid, answer. Answer. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) A. B, against C. B., and R. S. On the day of 19 . C. B., the respondent (or G. H., the solicitor of C. B., SUITS FOR DISSOLUTION OF MARRIAGE. 399 the respondent), in answer to the allegations in the act on petition, bearing date the day of 19 , of A. B., admitted (or denied) that (Here set forth any allegations admitted or denied.) And he alleged that ( Here state any facts or circumstances in expla- nation or in answer.) Wherefore the said C. B. (or G. H.), referring to the affidavits and proofs to be by her exhibited in verification of what she so alleged, prayed ( Here state the prayer of respondent .) (Signed) C. B. or G. H. Conclusion. A. B., against C. B., and B. S. On the day of 19. A. B., the petitioner (or C. D., the solicitor for A. B., the petitioner), in reply to the allegations of C. B. (or G . H . ) in her answer, bearing date denied the same in great part to be true or relevant. Wherefore he alleged and prayed as before. (Signed) A. B. or C. D. Act on Petition. Ibid, con- clusion. 400 PRACTICE IN MATRIMONIAL SUITS. Act on Petition. Form 60. Copy. Pleadings in an act on petition actually tried. Act on petition. Act on Petition. [ Commencement as in Form 59.] E. v. E. On the day of ,19 , D . W the solicitor of E. E., the respondent, alleged that: — 1. This is a suit instituted by I. E. against her hus- band, E. E., for a dissolution of her marriage on the ground of his adultery and cruelty . 2. That the domicil of origin of the said It. E. was in the West Indies, and that he has never at any time acquired an English domicil, or even had anything in the nature of a permanent residence in this country. 3 . That the said E . E . and the said I . E . were married in the year 19 , in New Zealand, and resided with their children at divers places in New Zealand down to the time when they came to England in the year 19 4. That from that time they lived together in divers places in England in furnished apartments, hotels, and furnished houses, which the said E. E. took from time to time until they separated by agree- ment in the month of , 19 5. That immediately after such separation the said E. E. left this country with his children, and has not at any time since had any home or place of abode within the jurisdiction of this honourable Court. Wherefore the said D. W., referring to the affi- davits and proofs to be by him exhibited in verification of what he so alleged, prayed that the said suit for dissolution of marriage might be dismissed with costs. SUITS FOR DISSOLUTION OF MARRIAGE. 401 Answer. [Commencement as in Form 59.] E. v. E. On the day of ,19 , J. J., the solicitor for I. E., the petitioner, in answer to the allegations in the act on petition, bearing date the day of , 19 , of R. E., alleged: — 1. That the said R. E. is an Englishman born in England of English parents. 2. That the father of the said R. E. was an officer in the English army. 3. That the father of the said R. E., after carrying on business as a sheep farmer in New Zealand,, returned to England, where he died in the year 19 , being then a domiciled Englishman. 4. That in the year 19 , the said R. E. sold his property in New Zealand and came to England with the intention of remaining in England, and that from 19 up to the time when the citation in this suit was extracted he had a permanent and bond fide residence in England and was domiciled in England. 5. That the said R. E. since the year 19 , when he came to reside in England, has never lost his English domicil or acquired any other domicil. 6. That the said R. E. was never domiciled in New Zealand, and never lost his English domicil of origin . 7. That the Court has jurisdiction to entertain this suit for dissolution of marriage. Wherefore the said J. J., referring to the affi- davits and proofs to be by him exhibited in 26 Act on Petition. Answer. D.M.C. 402 PRACTICE IN MATRIMONIAL SUITS. Act on Petition. Reply. verification of what he so alleged, prayed that the act on petition might be overruled with costs, and that the Court would order the said R. E. to enter an absolute appearance and file an answer to the merits, or in default thereof that the petitioner might be allowed to proceed and prove the allegations in her petition . Reply. [ Commencement as in Form 59.] E. v. E. The day of , 19 D. W., the solicitor for R. E., in reply to the allega- tions of I. E. contained in her answer filed herein on her behalf, says: — 1. That he denies the matters alleged in the 1st, 2nd, and 3rd paragraphs of the answer to be true. 2. And he says that the father of the said R. E. was born in the West Indies, of West Indian parents, and had his domicil of origin there; that he ob- tained a commission in the English army, and in the first instance joined a West Indian regiment, and on that regiment being disbanded was gazetted to the 59th regiment of infantry of the line. 3. That the said R. E. was born at Dover, in the county of Kent, while his said father was quartered at Plymouth with his said regiment, and when only a few weeks old was taken with his said father and the said regiment to Ceylon, and from the year 19 ,, when the said regiment returned to England, he remained with his father and with the said regiment at Plymouth and at Aberdeen, in Scotland, until the year 19 4. In the year 19 the father of the said R. E. left the army and went with his wife and family and the SUITS FOR DISSOLUTION OF MARRIAGE. 403 said R. E. to settle permanently in New Zealand, when he bought certain estates and acquired a domicil. 6. In the year 19 , having had a stroke of paralysis, the father of the said R. E. came to England for medical advice, and died in England in the year 19 , but he was not then a domiciled Englishman as alleged, nor did he ever acquire a domicil in England. 6. That if the said R. E. had an English domicil of origin as alleged, he lost such domicil and acquired a domicil in New Zealand long before his marriage with the said I. E., who was at the time of the said marriage domiciled in New Zealand. 7. That he denies the matters alleged in the fourth paragraph, and says that the said R. E. never acquired an English domicil and never had any permanent bond fide residence in England, and that before and at the time of the issuing of the citation in this suit, the said R. E. had ceased to have any residence in England . 8. That if the said R. E. ever acquired a domicil in England as alleged, he had abandoned it before and at the time of the issuing of the citation in this suit. Wherefore the said D. W. prays as before. Conclusion. On the day of ,19 , J. J., the solicitor for I. E., the petitioner, in answer to the allegations of D. W., the solicitor for R. E., in his reply bearing date the day of , 19 , denied the same in great part to be true and relevant. Wherefore he alleged and prayed as before. 26 (2) Act on Petition. Conclusion. 404 PRACTICE IN MATRIMONIAL SUITS. Act on Petition. Evidence. Affidavits and other proofs. Form of hearing or trial. Act on petition. May be tried by a jury. Evidence taken on affidavit, sed quaere. Procedure, fees and costs. By rule 60, “ Each party to the act on petition shall within eight days from that on which the last statement in answer is filed, file in the registry such affidavits and other proofs as may be necessary in support of their several averments.” By rule 61, “After the time for filing affidavits and proofs has expired, the party filing the act on petition is to set down the petition for hearing in the same manner as a cause; and in the event of his failing to do so within a month, any party who has filed an answer thereto may set the same down for hearing, and the petition will be heard in its turn with other causes to be heard by the judge without a jury.” [But the Court has a discretion under sect. 36 of the Divorce Act, 1857, as to the mode of trial of an act on peti- tion. In spite of Divorce Rule 61, which probably did not contemplate issues of fact as likely to arise on the trial of an act on petition, and although on an act on petition questions of law are generally combined with the issues of fact, and inconvenience may result from a trial of such questions with a jury, the Court will not refuse a jury if one of the parties wish for it, although a jury is not the proper tribunal for the purpose according to the old practice: Lowenfeld v. Lowenfeld, (1903) P. 177; 72 L. J. P. 57; 89 L. T. 146 (in the Court of Appeal).] As will be gathered from the above rules, the evidence on the trial of an act on petition is taken on affidavit. At the same time, it is hardly credible that the Court would allow issues of fact to be tried by a jury on affidavit; and it is quite certain that the Court has the power to order the evidence to be taken orally, if it thinks fit. An act on petition is tried in the same way as an ordi- nary cause, and the same fees and costs are allowed. [As to “ Custody, &c. of Children ” and “ Alimony and Maintenance see ante, Part 1., Chap. VIII., pp. 139 — 147, and Chap. IX., pp. 148 — 168; also tits. “ Practice as to Custody ,” &c., p. 444, “Alimony” &c., p. 446.] SUITS FOR JUDICIAL SEPARATION. 405 Practice in Suits for Judicial Separation. (See ante, Part I., Chap. III., p. 61.) A suit for judicial separation must be commenced by filing a petition. ( Rule 1, ante, p. 285.) The two principal distinctions between suits for disso- lution of marriage and for judicial separation are — (1) Whereas adultery is a necessary element in a petition for dissolution, whether filed by a husband or a wife, it is not necessary to allege adultery in every petition for judicial separation; and (2) a decree of judicial separation does not operate as a divorce a vinculo pnatrimonii ; in other words, it does not dissolve the marriage tie, so that neither of the parties can marry again during the lifetime of the other unless one or other of them has taken [pro- ceedings for and obtained a decree of dissolution. Either a husband or a wife can obtain a judicial separa- tion on any one or other of the following grounds: — Adultery, cruelty (ante, pp. 61 — 68), or desertion (ante, pp. 69—77). In a suit for judicial separation by a husband, alleged adulterers are not made co-respondents, as sect. 28 of the Mat. C. Act, 1857 (see ante, p. 285), only applies to suits for dissolution of marriage. Neither can a person charged with adultery with one or other of the parties to a suit for judicial separation obtain leave to intervene and make themselves parties to the suit, as in a suit for dissolution of marriage. (See ante, pp. 353—355.) [The practice as to petition, affidavit in verification, cita- tion, fees and costs, is the same in suits for judicial separa- tion as in suits for dissolution of marriage. See ante, pp. 288 — 319 .] JUDICIAL SEPARA- TION. Suit for judi- cial separation must be commenced by petition. Distinction between decrees for judicial separation and decrees for dissolution of marriage. Judicial separation, grounds for. Ibid, alleged adulterers not made co- respondents in suits for. Neither can they obtain leave to intervene. 406 PRACTICE IN MATRIMONIAL SUITS. Judicial Separation. Petition for, by husband, form of. In the High Court of J ustice, Probate, Divorce and Admiralty Division. (Divorce.) To the Right Honourable the President of the said Division. The day of , 19 . The petition of Timothy Trowse, of 125, King Edward’s Hill, Yarmouth, in the county of Norfolk, showeth — 1 . That your petitioner was on the day of , 19 , lawfully married to Charlotte Trowse. ( Con- tinue as in Form 1, 'paragraph 1, ante, p. 288.) 2. That after his said marriage your petitioner lived and cohabited with ( as in Form 1, paragraph 2, ante, p. 289). 3. That on the day of , 19 , and (as in Form 2, paragraph 3, ante, p. 290). 4. That in during the months of (as in Form 2, paragraph 4, ante, p. 291). [Add paragraphs 5 and 6 of Form 2, ante, p . 291, to meet requirements of rules 219, 220, ante, pp. 287, 288.] Your petitioner therefore humbly prays — That your Lordship will be pleased to decree that he may be judicially separated froni the said Charlotte Trowse (or the respon- dent), together with such other and further relief in the premises as to your Lordship may seem meet. Or, That your Lordship will be pleased to decree him — 1. A judicial separation. The following is a simple form of petition for judicial separation by a husband on the ground of his wife’s adultery : — Form 61. SUITS FOR JUDICIAL SEPARATION. 407 2. The custody of his children. 3. Such other and further relief as is meet. (Signed) Timothy Trowse. [. Endorsement as in Form 6, ante, p. 297.] Form 62. [The same by wife. Title as in Form 61 .] The petition of Charlotte Trowse, of The Loke Cot- tage, St. Mary-in-the-Marsh, in the county of Suffolk, showeth — 1 . That your petitioner (then Charlotte Reedham, spinster) was on the day of , 19 , lawfully married to Timothy Trowse at ( Continue as in Form 1 (wife's petition ), para- graph 1, ante, p. 290.) 2. That after her said marriage your petitioner lived and cohabited with her said husband (or the respon- dent) at (as in Form 1, paragraph 2, ante, p. 289). 3. That on the day of , 19 , and on divers days between that date and , the said Timothy Trowse (or the respondent), at 125, King Edward’s Hill, Yarmouth, in the county of Nor- folk, committed adultery with Jane Brundell, a servant then in the employment of himself and your petitioner. 4. That on or about the day of , 19 , the said Timothy Trowse (or the respondent), at 125, King Edward’s Hill aforesaid, committed adultery with Edith Haddiscoe. [Add paragraphs 5 and 6 of Form 2, ante, p. 291, to meet requirements of rides 219, 220 .] [Conclude with prayer , as in Form 61 .] (Signed) Charlotte Trowse. [Endorsement as in Form 6, ante, p. 297.] Judicial Separation. Petition for, by husband, form of. Ibid, by wife. 408 PRACTICE IN MATRIMONIAL SUITS. Judicial Separation. Petition for judicial separation, contents of, general observations as to. Charges of more than one class of matrimonial offence not necessary in suits for judicial separation. Affidavit verifying petition necessary, as in suits for dissolution. Ibid, form of. It is useless to multiply precedents of forms of petition in suits for judicial separation. Petitions to meet every case may be drafted from the precedents of petitions for dissolution of marriage. {See Forms 1, 2, 3, 4, 5 and 6, ante, pp. 288 — 297, adding in every case paragraphs 5 and 6 of Form 2, ante, p. 291, to meet the requirements of rules 219, £20, ante, pp. 287, 288, and taking the prayer from Form 6 1, ante, pp. 406, 407.) Also, it must be always borne in mind that it is not necessary to allege several matrimonial offences of different kinds in a petition for judicial separation. Either a husband or a wife can get a decree of judicial separation on the ground of adultery alone, cruelty alone, or desertion alone. Therefore it is unnecessary in the petition to charge adultery and cruelty, or adultery and desertion, although such a course is neces- sary where a wife is petitioning for a dissolution of her marriage. Pules 2 and 3 (ante, p. 298) apply equally to suits for judicial separation, and an affidavit verifying the petition must be sworn, the practice as to which is identically the same as in suits for dissolution. (Ante, pp. 298, 299.) Form 63. Affidavit verifying Petition for Judicial Separation. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) Trowse (Timothy) v. Trowse (Charlotte). Or, Between Timothy Trowse, petitioner, and Charlotte Trowse, respondent. [As the alleged adulterer is not made a co-respondent , his name does not appear on the record.'] SUITS FOR JUDICIAL SEPARATION. 409 In the matter of the Petition of Timothy Trowse for Judicial Separation. [ The rest of the affidavit is the same as Form 7, ante, p. 298; endorsement as in Form 8, ante, p. 299.] Citations are as necessary in suits for judicial separation as in suits for dissolution of marriage, and the practice as to them is identical in both classes of suits. (See ante, pp. 301—315.) Form 64. Citation by a Husband or Wife for a Judicial Separation. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) George V., by the Grace of God, of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, King, Defender of the Faith. ToC. D., of Whereas A. B., of , claiming to have been law- fully married to you, has filed his (or her) petition against you in the Divorce Registry of our said Court, praying for a judicial separation, wherein she alleges that you have been guilty of adultery; or, Cruelty towards her (or him) ; or, Desertion of her (or him) without cause for two years and upwards; or, Adultery and cruelty towards her; or, Adultery and desertion of her without cause for two years and upwards; Judicial Separation. Citation. By wife or husband in suits for judicial separation, form of. Entries in citation. 410 PRACTICE IN MATRIMONIAL SUITS. Judicial Separation. Citation, entries in. Practice as to. Guardian ad litem. Practice, same as in suits for dissolution. Ibid, amend- ment of pleadings. Ibid, appear- ance, answer, reply, and subsequent pleadings. Answers to suits for judicial separation. Ibid. affidavit or , Cruelty towards him (or her) and desertion of him (or her) without cause for two years and upwards; or, Adultery and cruelty towards her and desertion of her without cause for two years and upwards ; or, Praying for a judicial separation, you having failed to comply with a decree made by the Court in a suit insti- tuted by him (or her), for restitution of conjugal rights, and dated the day of , 19 Now this is to command you (as in Form 9, ante, pp. 301, 302). In every case the entries in the citation follow the charges in the petition, word for word. For all other matters of practice with respect to cita- tions, see ante, pp. 301 — 315. Where a petitioner or respondent in a suit for judicial separation is a minor or a lunatic or invalid, a guardian ad litem must be appointed. The practice is the same in suits for dissolution. (See ante, pp. 319 — 328.) The practice as to amendment of pleadings is the same as in suits for dissolution. (See ante, pp. 328 — 336.) So also is the practice as to entering appearance and filing answer, reply, and subsequent pleadings and par- ticulars. (See ante, pp. 337 — 368.) It seems unnecessary to give any special forms of answer to petitions for judicial separation, as they can easily be framed from the answers to suits for dissolution of mar- riage. (See Forms 32, 33, 34 and 35, ante, pp. 3<44 — 350.) They must in like manner, whenever containing any matter beyond a simple denial of the facts stated in the SUITS FOR JUDICIAL SEPARATION. 411 petition, be accompanied by an affidavit verifying such other matter, and negativing collusion and connivance, unless collusion or connivance be a part of the answer. (For form of such affidavits , see ante, Form 39, p. 352.) Relief by answer has always been given in suits for judicial separation (ante, p. 342). The practice is the same as in suits for dissolution (ibid.). But this only means such relief as could be given in the ecclesiastical courts, as a divorce a thoro et mensd (now called a judicial separation, Mat. C. Act, 1857 (20 & 21 Viet. c. 85), s. 7), restitution of conjugal rights, jactita- tion of marriage, or nullity. A dissolution of marriage cannot be prayed for in the answer to a suit for judicial separation. The respondent must file a cross petition. (See ante, pp. 343, 367, 368.) The practice as to setting down cause, notice, hearing and trial up to decree is the same in suits for judicial separation as in suits for dissolution of marriage. (See ante, pp. 368 — 388.) [Under sect. 28 of the Mat. C. Act, 1857 (20 & 21 Viet, c. 85), the Court has power to order a suit for judicial separation to be tried by a jury if either of the parties desire it, but it has been held that it is not obligatory on it to do so. Marchmont v. Marchmont (1858), 1 S. & T. 228; 27 L. J. P. 59.] The decree pronounced in a suit for judicial separation is a final decree; that is to say, it takes effect immediately from the day on which it is dated. (See post, pp. 488, 489.) [The practice as to suing in forma pauperis and appearing under protest applies equally to all matrimonial suits. See ante, pp. 389 — 395.] By sect. 23 of the Mat. C. Act, 1857 (20 & 21 Viet, c. 85), power is given to a respondent to a suit for judicial separation to petition for a reversal of the decree pro- nounced against him or her. (See ante, p. 81.) Judicial Separation. verifying answer. Ibid, relief by answer given ; but only such relief as might have been given in the ecclesiastical courts. Setting down notice, &c. and hearing of suits for judicial separation. Jury. Decree in suits for 0 judicial separation. Suing in form A pauperis , and appearing under protest. Reversal of decree of judicial separation. 412 PRACTICE IN MATRIMONIAL SUITS. Judicial Separation. Ibid. petition for. Service of, and answer. Subsequent pleading. Petition for, form of. By rule 63, “A petition to the Court for the reversal of a decree of judicial separation must set out the grounds on which the petitioner relies.” By rule 64, “ Before such a petition can he filed, an appearance on behalf of the party praying for a reversal of the decree of judicial separation must be entered in the cause in which the decree has been pronounced.” By rule 65, “A certified copy of such a petition, under seal of the Court, shall be delivered personally to ,the party in the cause in whose favour the decree has been made, who may within fourteen days file an answer thereto in the registry, and shall on the day on which the answer is filed deliver a copy thereof to the other party in the cause, or to his or her proctor, solicitor, or attorney.” And by rule 66, “ All subsequent pleadings and pro- ceedings arising from such petition and answer shall be filed and carried on in the same manner as before directed in respect of an original petition for judicial separation, and answer thereto, so far as such directions are appli- cable.” Form 66. Petition for the Reversal of a Decree of Judicial Separation. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) To the Right Honourable the President of the said Division . The day of , 19 The petition of A. B., of , in the county of , showeth — 1. That your petitioner was on the day of ,, 19 , lawfully married to C. B., at SUITS FOR JUDICIAL SEPARATION. 413 2. That on the day of , your Lordship, by your final decree, pronounced in a cause then de- pending in this Court, entitled A. B. against C. B., decreed as follows; to wit: [Here set out the decree .] 3 . That the aforesaid decree was obtained in the absence of your petitioner, who was then residing at [State facts tending to show that the petitioner did not know of the proceedings ; and further , that had he known of them he might have offered a sufficient defence .] Or, That there was reasonable ground for your peti- tioner leaving his said wife, for that his said wife [Here state any legal grounds justifying the petitioner's separation from his wife.] Your petitioner therefore humbly prays — That your Lordship will be pleased to reverse the said decree, that your petitioner may have such other and further relief in the premises as to your Lordship may seem meet. Or, if preferred , That your Lordship will be pleased to order: 1. That the said decree be reversed. 2. Such further and other relief as is meet. (Signed) A. B. [As to “ custody, &c. of children ” and “ alimony ,” see ante, Part I., Chaps. VIII., pp. 139 — 147, and IX., pp. 148 — 168; also titles, “ Practice as to Custody ” &c., p. 442, “Ali- mony,” &c., p. 446. For fees and costs, see post, pp. 540 — 603.] Judicial Separation. Petition for reversal of decree of, form of. 414 PRACTICE IN MATRIMONIAL SUITS. RESTITU- TION OF CONJUGAL RIGHTS. Practice in Suits for Eestitution of Conjugal Eights, (See ante, Part Chap. IV ., pp. 83—92.) Commenced by petition and affidavit in verification, Written demand for cohabitation required before filing petition. Nature of demand required by rule 175. Demand re- turned twice unopened. Refusal by solicitor to assist petitioner. Substituted service ordered. Suits for restitution must be commenced by petition (rule 1, ante, p. 285) and affidavit in verification (rule 2, ante, p. 298). But by rule 175, “ The affidavit filed with the petition, as required by rule 2, shall further state sufficient facts to satisfy one of the registrars that a written demand for cohabitation and restitution of conjugal rights has been made by the petitioner upon the party to be cited, and that after a reasonable opportunity for compliance there- with such cohabitation and restitution of conjugal rights have been withheld.” [The demand required by rule 175 may be written by the solicitor for, or a friend of, the petitioner, as well as by the petitioner, but it must be conciliatory and show willingness to return to cohabitation (Field v. Field (1889), 14 P. D. 26; 58 L. J. P. 21; 59 L. T. 880; Mason v. Mason (1889), 61 L. T. 304); but if civil, and showing desire for cohabitation, it may threaten legal proceedings in case of refusal: Smith v. Smith (1890), 15 P. D. 47; 59 L. J. P. 9; 62 L. T. 237. Although it must not be a hostile demand, it can hardly be expected to be of an affectionate nature, and, provided the request is clear, the Court will not inquire too closely into the peremptory character of the precise words which are used: Elliott v. Elliott (1902), 85 L. T. 648. Where a peti- tioner had sent two such demands to her husband, by regis- tered letter, both of which had been returned unopened by the husband’s solicitor, who subsequently refused to give the husband’s address, or that of any third person through whom he might be communicated with, and it was also shown that the husband had left the country, the Court made an order for substituted service of such demand upon the husband’s solicitor: Tucker, Ex parte, (1897) P. 83; 66 L. J.P. 65; 77 L. T. 140.] SUITS FOR RESTITUTION OF CONJUGAL RIGHTS. 415 When the demand for cohabitation is made by a hus- band, it should give the address where he desires his wife to come to him. When made by a wife, if she is still residing at the matrimonial home, she should ask her husband to return home; if otherwise, she should ask him to receive her, where he is living at the time, or that he will inform her at what address he is willing to receive her. The affidavit should show either that the demand under rule 175 was personally served, or else satisfy the registrar that it was received by the proposed respondent, or at least that it was posted in a registered letter to the address at which he or she was residing. Otherwise an order will have to be obtained for substituted service of the demand. [An order for substituted service is obtained, as in case of a citation. See ante, p. 308 et seq.] When the registrar has approved the affidavit and marked it to that effect, the petition and affidavit can be filed, and the citation extracted. Form 67. Petition for Restitution of Conjugal Rights. [< Commencement and paragraphs 1 and 2 as in Form 1 .] 3. That the said A. B. did, on the day of , 19 , withdraw from cohabitation with your peti- tioner, and has kept and continued away from her without any just cause whatsoever, and from thence hitherto has refused and still refuses to render her conjugal rights. [. Insert here paragraphs 5 and 6 of Form 2, ante, p. 291, to satisfy rules 219 and 220, ante, pp. 287, 288.] Restitution of Conjugal Rights. Demand should indi- cate place to which party is asked to return to cohabitation. Affidavit must satisfy registrar that demand was personally served or received by proposed respondent or at least sent in registered letter to his or her proper address ; otherwise order for substituted service of demand required. ALffidavit approved by registrar ; petition filed and citation extracted. Petition for restitution, form of. 416 PRACTICE IN MATRIMONIAL SUITS. Restitution of Conjugal Rights. Affidavit verifying petition, form of. Suit for restitution may be sta} r ed. Claiming relief by answer to Your petitioner therefore humbly prays — That the Court will decree a restitution of conjugal rights to your petitioner from the said A. B., and that he pay the costs of and incident to this petition, and that your peti- tioner have such other and further relief as to your Lordship seems meet. Or, if preferred : That your Lordship will be pleased to decree her: 1. Restitution of conjugal rights. 2. Such further and other relief as is meet. [Petitioner's signature.'] The affidavit verifying the petition will be as in Form 7 (ante, pp. 298, 299), with the addition of the matter relating to the demand for cohabitation shown supra ; but it need not contain paragraph 3 (ante, p. 299), denying collusion and connivance. By rule 176, “ At any time after the commencement of proceedings for restitution of conjugal rights the respon- dent may apply by summons to the judge, or to the registrars in his absence, for an order to stay the proceed- ings in the cause by reason that he or she is willing to resume or to return to cohabitation with the petitioner.” [Except as above, the practice in suits for restitution of conjugal rights is the same as in suits for dissolution of marriage. See “Petition,” ante, pp. 288 — 297, 299; “ Affi- davit Verifying,” 298 — 300; “ Citations,” 301 — 315; “ Guar- dianship 319 — 328; “ Amendment of Pleadings ,” 328 — 336; “ Appearance,” 337 — 341 ; “ Answer and Subsequent Plead- ings,” 341 — 353, 355 — 357 ; “ Cross Petitions and Consoli- dation,” 367,368; “ Hearing or Trial,” 368 — 388; (( Suing in forma Pauperis,” 389 — 395; “ Appearance under Protest,” 395—404.] The same class of relief (and no other) may be prayed for in the answer to a suit for “restitution of marriage ” SUITS FOR RESTITUTION OF CONJUGAL RIGHTS. 417 as in the answer to a suit for “ judicial separation.” (See ante, pp. 410, 411.) Restitution of Conjugal Rights. F ORM 68 . suit for restitution Answer to a Suit for Restitution of Conjugal Rights. [' Commencement as in Form 32, p. 344.] 1 . That he denies that he has without any j ust cause Answer to refused or still refuses to permit the petitioner to restitution, live and cohabit with him, or to render her con- form of * jugal rights. Or, That by reason of the circumstances set forth herein- after, the respondent had and still has reasonable cause for refusing to permit the petitioner to live and cohabit with him, and for refusing to render her conjugal rights. [ Proceed to countercharge adultery, cruelty, or desertion, or any other misconduct of ivhich the petitioner may have been guilty, and con- clude with prayer for rejection of petition and for the relief asked for, as “judicial separa- tion," “custody of children &c. A disso- lution of marriage can only be claimed by a cross petition. If the respondent desires to allege nullity, it should be done, and relief prayed in one of the Forms of Petition for Nullity of Marriage, post, pp. 425 — 431. Verify all countercharges by affidavit, as in Form 63.] Form 69. Citation in a Suit for Restitution of Conjugal Rights. [ Title and commencement as in Form 9, p. 301.] To C . B . , of , in the county of Whereas A. B., of , in the county of 27 Citation in suit for restitution of conjugal rights, form of. D.M.C. 418 PRACTICE IN MATRIMONIAL SUITS. Restitution of Conjugal Rights. Deed of separation must be specially- pleaded in answer. Decree, form of. Wife ordered to return to husband within fixed time. Husband ordered either to return to wife or to receive her within fixed time, and file certificate showing obedience. Certificate, contents of. Usual fee paid. claiming to have been lawfully married to you, has filed his petition against you in the Divorce Registry of our said Court, praying for a restitution of conjugal rights. Now this is to command, &c. ( Conclude as in Form 9, ante, pp. 301, 302.) [If it is desired to set up an agreement for separation, previously entered into between the parties, as a bar to a decree for restitution of conjugal rights, such agreement must be specially pleaded in the respondent’s answer. Bardie v. Bardie (1901), 70 L. J. P. 29; 84 L. T. 64.] The decree in a suit for restitution of conj ugal rights is a final decree in the first instance. [See post, title “ Practice as to Decree and Intervention ,” p. 487.] If the respondent be the wife, she will be ordered to return to cohabitation with her husband within a fixed time. If the respondent be the husband, he will be ordered to take back his wife, or to return to her (as the case may he), within a fixed time, and, further, to file a certificate in the registry that he has obeyed the decree. Almost any form of certificate will do. It should he headed in the cause, and commence more or less thus: — “ Certificate. “ This is to certify that I have, pursuant to the order of this honourable Court, served on me upon the 5th day of October, 19 and then proceed to show where he has provided a matrimonial home, that he has given notice to his wife that he has done so, and requested her to join him there. It must be, of course, dated and signed by the respondent. The usual fee for filing all documents, 2s. 6d., must be paid on filing this certificate. SUITS FOR RESTITUTION OF CONJUGAL RIGHTS. 419 A sealed copy of the decree should be personally served on the respondent, otherwise it will become necessary to apply for substituted service. [// substituted service is applied for , it must be done in the same way as an application for substituted service of a citation. See ante, pp. 308 et seq. If a respondent in a suit for restitution is a domiciled Englishman, he may be served with any proceeding in such suit anywhere outside the jurisdiction of the Court. Dicks v. Dicks, (1899) P. 275; 68 L. J. P. 118; Hardie v. Hardie and Bateman v. Bateman , (1901) P. 136; 70 L. J. P. 29; 84 L. T. 64, 331. If a respondent is served with a decree for restitution abroad, he should be allowed sufficient time to return to this country and comply with the order, if he desires to do so; and if the petitioner takes further proceedings in consequence of the respondent’s non-compliance with such decree, such petitioner must satisfy the Court that sufficient time has been given to comply with it. Bateman v. Bateman, (1901) P. 136; 70 L. J. P. 29; 84 L. T. 331. Where a wife respondent was evading service of a decree and an order for custody of children ( as to which, see title “ Practice as to Custody and Access ”), the Court of Appeal, although she was not abroad, ordered a writ of sequestration to issue, without service of the decree or order. Allen v. Allen (1885), 10 P. D. 187; 54 L. J. P. 77; see also Hyde v. Hyde (1888), 13 P. D. 166; 57 L. J. P. 89; 59 L. T. 529. As to the effect of a decree of restitution on subsequent proceedings between the same parties, by virtue of the pro- visions of the Mat. C. Act, 1884, see ante, Part 1., pp. 84 et seq.; and as to custody, dec. of children, and “alimony," see ante, Part I., Chaps. VIII. {pp. 139 — 147) and IX., pp. 148 — 168; also titles “ Practice as to Alimony, dec." p. 446, and “ Custody, dec .,” p. 444. For fees and costs, see post, pp. 540 — 603.] 27 ( 2 ) Restitution of Conjugal Rights. Personal service. Service on respondent out of jurisdiction. Limit of time in which to comply with decree to return to cohabitation. Wife evading service of decree, and also order for custody of children. 420 PRACTICE IN MATRIMONIAL SUITS. JACTITA- TION. Jactitation of marriage, what is. Practice same as in other suits. References for practice. Petition for jactitation of marriage, form of. Practice in Suits for Jactitation of Marriage. [. As to what is a suit for jactitation of marriage, see ante, Part 1., Chap. V., pp. 93, 94.] The proceedings are commenced by a petition, and from that point up to decree the practice is the same as shown in the foregoing pages. [$ee ante: “Petition,” pp. 288 — 297; “ Affidavit in Veri- fication,” 298 — 300; “Citation,” 301 — 315; “Guardianship,” 319 — 328; “Amendment of Pleadings,” 328 — 336; “Appear- ance,” 337 — 341; “Answer and Subsequent Pleadings,” 341 — 353; “Cross Petitions and Consolidation,” 367 — 368; “Hearing or Trial,” 368 — 388; “Suing in forma pauperis,” 389 — 395; “ Appearance under Protest,” 395 — 404.] Form 70. Petition in a Suit for Jactitation of Marriage. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) To the Fight Honourable the President of the said Division. The day of , 19 . The petition of William Whitlingham, of , in the county of , Master Brickmaker {see rule 220, ante, p. 288), showeth — 1 . That Ann Evans, falsely calling herself Ann Whit- lingham, of , in the county of , did in or about the month of , 19 , at , in the county of , and in divers other places, wilfully and without the authority of your peti- SUITS FOR JACTITATION OF MARRIAGE. 421 tioner, boast and assert that she was the wife of your petitioner. 2. That your petitioner is not, and never at any time has been, married to the said Ann Evans. 3. That the said Ann Evans refuses to desist from boasting and asserting that she is the wife of your petitioner. [ Insert here two paragraphs in the identical words of paragraphs 5 and 6 of Form 2, ante, p. 291, to comply with rules 219, 220, ante, pp. 287, 288.] Your petitioner therefore humbly prays — That your Lordship will be pleased to decree that the said Ann Evans do cease and desist from boasting or asserting that she is the wife of your petitioner, and that she be enjoined perpetual silence in the premises. And that your petitioner may have such further and other relief in the premises as to your Lordship may seem meet. Or, if preferred : That your Lordship will be pleased to grant him — 1. A decree of perpetual silence against the said Ann Evans. 2. Such further and other relief as is meet. [. Petitioner's signature.'] [Verify by affidavit , as in Form 7, ante, pp. 298, 299.] The paragraph denying collusion and connivance under rule 3 (ante, p. 298) is required by the practice in suits for jactitation, though dispensed with in suits for restitu- tion of conjugal rights. Jactitation. Affidavit must deny collusion and connivance. 422 PRACTICE IN MATRIMONIAL SUITS. Jactitation. Citation, form of. Suit in respect of jactitation ; answer, form of. Form 71. Citation in a Suit for Jactitation of Marriage. [C ontonencement as in Form 9, p. 301.} To Ann Whitlingham (otherwise Ann Evans), of , in the county of Whereas William Whitlingham, of , in the county of , has filed his petition against you in the Divorce Registry of our said Court, praying that you may be ordered to cease and desist from boasting and asserting that you are the wife of the said William Whitlingham, and that you be enjoined perpetual silence in the pre- mises. Now this is to command you, &c. ( Conclude as in Form 9, p. 301.) Form 72. Answer to a Suit in respect of Jactitation of Marriage. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) Whitlingham (William) v. Whitlingham (Ann), sued as Evans (Ann). Or, Between William Whitlingham, petitioner, and Ann Whitlingham (sued as Ann Evans), respondent. The respondent, Ann Whitlingham, by her solicitor, in answer to the petition filed in this cause, saith — 1 . That she denies that she boasted or asserted that she was married to the said petitioner, as alleged in the said petition. SUITS FOR JACTITATION OF MARRIAGE. 423 2. That on the day of ,19 , at the parish church of , in the county of , the respondent was lawfully married to the said peti- tioner. 3. That the said William Whitlingham has ever since about the month of , 19 , without any just cause refused and still refuses to live and cohabit with the respondent, or to render her conjugal rights. Wherefore the respondent humbly prays — That your Lordship will be pleased to reject the prayer of the said petition, and to de- clare that the respondent was on the day of , 19 , lawfully married to the said William Whitlingham, as alleged in her answer, and to decree that the said William Whitlingham do receive the re- spondent as his wife, and render to her conjugal rights. And that the respondent may have such further and other relief as to your Lordship may seem meet. Or, a shorter and in ernry way equally efficacious form would he : That your Lordship will be pleased to reject the prayer of the said petition, and to grant her — 1 . A declaration that she is the lawful wife of the said William Whitling- ham (or the petitioner). 2. A decree of restitution of conjugal rights. 3. Such other and further relief as is meet. This answer must be verified by an affidavit, which must deny collusion and connivance. (See Form 39, p. 352.) Jactitation. Answer must be verified by affidavit denying collusion and connivance. 424 PRACTICE IN MATRIMONIAL SUITS. Jactitation. Decree, form of. The decree in this suit is final, and the wording of it will follow the wording of the citation (ante, p. 422; see also post, p. 489.) Undefended case ; jury. No decree where petitioner acquiesced in boasting. [The Court will not order an undefended suit for jactita- tion to be tried by a jury ( Thompson v. Rourke , (1892) P. 244; 61 L. J. P. 132; 67 L. T. 137), neither will it decree perpetual silence if the petitioner has at any time acquiesced in the boasting. Ibid., (1893) P. 70; 62 L. J. P. 46; 67 L. T. 788. Both these decisions were in the Court of Appeal.] {For fees and costs, see post, pp . 540 — 603.) SUITS FOR NULLITY OF MARRIAGE. 425 Practice in Suits for Nullity. For the grounds on which a party to a marriage is entitled to petition for a decree of nullity, see Part I., Chap. VI., ante , pp. 95 — 132. Suits for nullity are commenced by petition. The practice is the same as in suits for dissolution. (See ante, pp. 288—297.) [ As to who may file a petition for nullity of marriage , besides the parties to the marriage themselves , see ante, p. 104 .] The following forms of petitions in suits for nullity will be found useful: — Form 73. Petition for Nullity by reason of Undue Publication of Banns. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) To the Right Honourable the President of the said Division . The 10th day of August, 19 The petition of Camilla Oulton (otherwise Carlton), of Beccles, in the county of Suffolk (or “of Obadiah Oulton, butcher (see rule 220, ante, p. 288), of Potter Heigham, in the county of Norfolk”), showeth — 1 . That on or about the 9th day of May, 19 , at the parish church of St. Margaret, Lowestoft, in Suf- folk aforesaid (or “in the county of Suffolk”), a ceremony of marriage took place between your petitioner (then Camilla Carlton, spinster) and Obadiah Oulton, butcher (see rule 220, ante, p. 288), of Potter Heigham, in the county of NULLITY. Nullity, grounds for. Suit com- menced by petition. Who may petition for. Nullity by reason of undue publication of banns. Form of petition. 426 PRACTICE IN MATRIMONIAL SUITS. Nullity. Norfolk (or “ Camilla Carlton, of Beccles, in the county of Suffolk”). 2. That the said ceremony of marriage took place in (pursuance of banns, and after the banns of the said marriage had been published in the names of William Smith and Alice Brown. 3 . That no licence had been obtained for the solemniza- tion of the said ceremony of marriage. 4. That at the time of the publication of the said banns as aforesaid, the true names of the alleged William Smith and Alice Brown were Obadiah Oulton and Camilla Carlton, but that notwithstanding the same, your petitioner and the said Obadiah Oulton (or “Camilla Carlton”) knowingly and wilfully caused the said banns to be published in the names of William Smith and Alice Brown as aforesaid. [ Insert paragraphs 5 and 6 as in Form 2, ante, p. 291, substituting the words “ ceremony of marriage ” for the word “ marriage .”] Wherefore your petitioner humbly prays — That your Lordship will be pleased to decree that the said ceremony of marriage cele- brated as aforesaid, between your petitioner and the said Obadiah Oulton (or “ Camilla Carlton ”) is null and void, and that your petitioner may have such further and other relief in the premises as to your Lordship may seem meet. Or, if preferred : That your Lordship will be pleased to grant her — 1. A decree of nullity of marriage. 2. Such further and other relief as is meet. (Signed) Camilla Carlton, or Obadiah Oulton. SUITS FOR NULLITY OF MARRIAGE. 427 Form 74. Petition for Nullity of Marriage alleging Impotency by reason of Malformation, Frigidity, &c. [Commencement and paragraph 1 as in Form 73.] 2. That the said Obadiah Oulton was at the time of the said ceremony of marriage, and has ever since been, wholly unable to consummate the said marriage, owing to the malformation of his parts of genera- tion. 2a. That the said Obadiah Oulton was at the time of the said ceremony of marriage, and has ever since been, and still is, wholly unable to consummate the said marriage by reason of the frigidity and impotence of his parts of generation. 2b . That the said Obadiah Oulton was at the time of the said ceremony of marriage, and has ever since been, and still is, wholly unable to consummate the said marriage by reason of the malformation, or frigidity and impotence of his parts of generation, or hysteria, or from some other physical cause, the exact nature of which is to your petitioner at pre- sent unknown. 3. That the said malformation, frigidity, or impotence of the parts of generation of the said Obadiah Oulton is wholly incurable by art or skill, and will so appear upon inspection. 3a. That the said malformation, frigidity, or impo- tence or other physical cause affecting the parts of generation of the said Obadiah Oulton, and render- ing him incapable of consummating the said marriage, is wholly incurable by art or skill, and will so appear upon inspection. [Continue and conclude as in Form 73, from paragraph 4 onwards .] (Signed) Camilla Carlton. Nullity. On ground of physical incompetence. Form of petition. 428 PRACTICE IN MATRIMONIAL SUITS. Nullity. On ground of insanity. Form of petition. Or , 2. That by reason of the malformation, frigidity, or impotence of the said Camilla Carlton, or by reason of some other physical defect in the said Camilla Carlton, rendering her incapable of consummating the said marriage, your petitioner was at the time of the said marriage, and has ever since been, and still is, wholly unable to consummate the said marriage. 3. That such malformation, frigidity, or impotence, or other physical defect in the said Camilla Carlton, as in the last paragraph set forth, is incurable by art or skill, and will so appear on inspection. [ Continue and conclude as in Form 73 from paragraph 4 onwards (Signed) Obadiah Oulton. Form 75. Petition for Nullity of Marriage on the ground of Insanity. [Commencement and paragraph 1 as in Form 73.] 2. That on the said day of , 19 , at the time of the performance of the said ceremony, and prior thereto, your petitioner was lunatic and in- capable of contracting marriage, and that the said pretended marriage was brought about by the fraud, procurement, and contrivance of the said Obadiah Oulton (or “Camilla Carlton”). Or, 2. That on the said day of , 19 , when the said ceremony of marriage was in fact had between the said Obadiah Oulton and the said Camilla Carlton, the said Obadiah Oulton was, and for some time prior thereto had been, of unsound mind, and incapable of contracting marriage. SUITS FOR NULLITY OF MARRIAGE. 429 3. That the performance of the said ceremony of mar- riage was procured by the fraud and contrivance of the said Obadiah Oulton (or “Camilla Carlton”). [ Continue and conclude as in Form 73 from paragraph 4 onwards.'] (Signed) Camilla Carlton, or Obadiah Oulton. Form 76. Petition for Nullity on the ground of the Marriage being Bigamous. [' Commencement as in Form 73.] 1. That on or about the 9th day of May, 1908, at the parish church of St. Margaret, Lowestoft, in Suf- folk, aforesaid (or “in the county of Suffolk”), a ceremony of marriage took place between your peti- tioner and Obadiah Oulton, of Potter Heigham, in the county of Norfolk, butcher (or Camilla Barton, then known to your petitioner as, and believed by him to be, Camilla Carlton, spinster). 2. That prior to the 9th day of May, 1908, when the said ceremony of marriage took place between your petitioner and the said Obadiah Oulton (or “ Camilla Barton ”), that is to say, on the 10th day of June, 1901, at the parish church of Acle, in the county of Norfolk, the said Obadiah Oulton (or “Camilla Barton”) was lawfully married to Isabella Oulton, then Isabella Isted, spinster (or “Benjamin Barton”), of , in the county of 3. That on the 9th day of May, 1908, when the said ceremony of marriage took place between your petitioner and the said Obadiah Oulton (or “Camilla Barton”), as in the 1st paragraph set Nullity. On ground of bigamy. Form of petition. 430 PRACTICE IN MATRIMONIAL SUITS. Nullity. By reason of affinity. Form of petition. Other forms of petition. forth, the said Isabella Oulton, the wife of the said Obadiah Oulton (or “ Benjamin Barton, the husband of the said Camilla Barton”), was still living. [Continue and conclude as in Form 73 from paragraph 4 onwards.'] (Signed) Camilla Carlton, or Obadiah Oulton. Form 77. Petition for Nullity by reason of Affinity. [Commencement and paragraph 1 as in Form 73, p. 425.] 2. That the said Obadiah Oulton was then a widower, having on the 10th day of March, 1903, been law- fully married to Lucy Oulton (then Lucy Carlton, spinster, and the natural and lawful sister of your petitioner) at the parish church of Carlton-next- Oulton, in Suffolk aforesaid. 3. That the said Lucy Oulton died on the 31st day of December, 1907. Or, 2 . That the said Camilla Carlton is the niece of the said Obadiah Oulton, being the natural and lawful daughter of his half-sister, Sarah Carlton, formerly Sarah Oulton, spinster. [Continue and conclude as in Form 73, p. 425, from paragraph 4 oriwards.] (Signed) Camilla Carlton, or Obadiah Oulton. The above forms of petition appear to be sufficient. Paragraphs to meet other grounds of nullity (as where the SUITS FOR NULLITY OF MARRIAGE. 431 parties have married between decree nisi and decree abso- lute) can easily be framed. A petition for nullity, like a petition for dissolution, must be verified by affidavit, which must deny collusion and connivance. ( For practice and forms, see ante, pp. 298—300.) The petitioner must next extract a citation, as in suits for dissolution. ( For practice, forms, service, substituted service, fees, dc ., see ante, pp. 301 — 315.) Form 78. Citation in Suit lor Nullity. [Heading and commencement as in Form 9, p. 301.] To C. B., otherwise C. D., of , in the county of Whereas A. B., of , in the county of , has filed bis petition against you in the Divorce Registry of our said Court, praying that the marriage (or ceremony of marriage) celebrated and solemnized at , in the county of , on the day of , 19 , between him (or her) and you may be pronounced null and void, by reason that the said marriage (or ceremony of marriage) was solemnized (1) without due publication of banns; or (2) without a licence having been first duly had and obtained; or (3) by reason that you and the said A. B. knowingly and wilfully consented or acquiesced in the pretended solemnization of such marriage by a person not being in holy orders (or otherwise, as the case may be)\ or (4) by reason of consanguinity between you and the said A. B.; or (5) by reason of affinity between you and the said A. B.; or (6) by reason of your impotence, frigidity, or hysteria, or incapacity for sexual intercourse existing at the time of the said alleged marriage; or (7) by reason of your former marriage with R. S., who was living at the time of your alleged marriage with the Nullity. Affidavit in verification must deny collusion and connivance. Citation necessary. Citation in nullity suit, form of and entries in. 432 PRACTICE IN MATRIMONIAL SUITS. Nullity. Guardian ad litem. Cases as to. “ Amend- ment of Pleadings,” “ Appear- ance,” and “ Answer,” practice as to. Answer and subsequent pleadings. Relief by- answer in nullity suits. Decree of restitution ; or decree of nullity on prayer of respondent instead of petitioner. Answer to petition for nullity, contents of. Insincerity. said A. B. Now this is to command, &c. ( Conclude as in Form 9.) In cases where an appointment of a guardian is neces- sary, for practice see ante, pp . 297 — 299 . [Where in a nullity suit a guardian ad litem has been assigned to a lunatic, if in the course of the suit it is alleged that the lunatic has recovered his or her sanity, the Court will not make a decree at the instance of the guardian till that question is settled. ( Hancock ( falsely called Peaty ) v. Peaty (1867), L. R., 1 P. & D. 335; 36 L. J. P. 57; 16 L. T. 182.) No order ought to be made under rule 196 if there is a bond fide doubt as to the patient’s sanity. See Fry v. Fry (1890), 15 P. D. 50; 59 L. J. P. 43; 62 L. T. 501.] For 'practice as to amendment of pleadings, see ante, pp. 328 — 336; and as to appearance, see ante, pp. 337 — 341. For practice as to answer, see ante, pp. 341 — 353, 355 — 357. The Court can give relief by answer in suits for nullity; so a respondent who denies the allegations in the petition may pray for a restitution of conjugal rights without making the usual demand for return to cohabitation. ( See ante, p. 414.) If a decree is pronounced, : the practice will be as shown (ante, pp. 418, 419). Where a decree of nullity is prayed for on the ground of impotence, &c., the respondent can allege that he or she was prevented from consummating the marriage by reason of the impotence, &c. of the petitioner, and pray for a decree of nullity to be pronounced on his or her prayer instead of on the prayer of the petition. The only substantial answer where the validity of a marriage is disputed on the ground that the parties were not free to contract, or were within the prohibited degrees, or were physically or mentally incompetent to contract, is a traverse of the allegations in the petition. In order to raise the question of insincerity, it is neces- sary that the answer should specifically allege it ( a ) . (a) S. ( otherwise G.) v. S., (1907) P. 224 ; 76 L. J. P. 118. SUITS FOR NULLITY OF MARRIAGE. 433 On the other hand, when the marriage is disputed on the ground of some informality in its solemnization, then any of the defences suggested ante , Part I., Chap. VI., pp. 95 — 132, may be raised in answer to the petition. The following forms of answer will be found useful as precedents: — Form 79. Answer to a Petition for Nullity by reason of Undue Publication of Banns. In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) The day of , 19 . Oulton (otherwise Carlton) (Camilla) [or Carlton (otherwise Oulton) (Camilla)] v. Oulton (Obadiah); or , Between Camilla Oulton (otherwise Carlton) [or Camilla Carlton (otherwise Oulton)], petitioner, and Obadiah Oulton, respondent (if the 'petitioner he the wife ) ; or, Oulton (Obadiah) v. Carlton (otherwise Oulton) (Camilla) ; or, Between Obadiah Oulton, petitioner, and Camilla Carlton (otherwise Oulton), respondent (if the petitioner is the husband). The respondent, Obadiah Oulton (or “ Camilla Oul- ton”), by her (or his) solicitor, in answer to the petition filed in this cause, saith — 1 . That he (or she) denies that the petitioner and him- d.m.c. 28 Nullity. By reason of undue publication of banns ; form of answer. 434 Nullity. By reason of impotence. Form of answer. PRACTICE IN MATRIMONIAL SUITS. self (or herself) knowingly and wilfully caused the banns to be published in the names of William Smith and Alice Brown, and that no licence was obtained for the celebration of the said marriage as alleged in paragraphs 2 and 3 of the said petition. 2. That he (or she) was not aware at the time of the said marriage of the undue publication (if any) of the said banns. 3. That on the 9th day of May, 1908, at the parish church of St. Margaret, Lowestoft, in the county of Suffolk, the said respondent (or “ the said re- spondent, then Camilla Carlton, spinster ”), was lawfully married to the said petitioner. Wherefore the respondent humbly prays — That your Lordship will be pleased to reject the prayer of the said petition, &c. ( Con- tinue and conclude as in Form 33.) [7/ it is desired to make countercharges , 'paragraph 4 will commence , “ The respondent further saith ,” then follow the countercharges as in Form 33 (ante, p. 344) ; and if it is desired to ask for relief , conclude with a prayer, either for judicial separation, as in Form 61, ante, p. 406, or for re- stitution of conjugal rights, as in Form 67, ante, p. 415.] Form 80. Answer to a Petition for Nullity on the ground of Impotence. [ Commencement as in Form 79, p. 433.] 1. That he (or she) denies each and every one of the allegations contained in paragraphs 2, 2a, 2b, 3, and 3a of the said petition. 2. That the petitioner did consummate the said mar- riage so solemnized as aforesaid, and that the respondent was at the time of the said marriage, and from thence hitherto hath been and still is, apt for coition, as will appear on inspection. SUITS FOR NULLITY OF MARRIAGE. 435 3. That the respondent was at the time of the said Nullity. marriage, and from thence hitherto has been, and still is, apt for coition, as will appear on inspection, and the said respondent always has been, and still is, willing to consummate the said marriage, but has been hitherto prevented from doing so by reason of the malformation, &c. {see Form 74, ante, p. 427) of the petitioner. 4. The respondent further saith [ Insert here countercharges, if it is desired to make any , and conclude with prayer as in Form 79, p. 433, or { if desired) with a prayer for a decree of nullity, as in Form 73, p. 425 .] There can be no possible answer to a petition for nullity Nullity by by reason of “ insanity ” or “ affinity,” except a denial of insanity f or the facts alleged in the petition. affinity. Of course, an insane respondent, appearing by his or Respondent her guardian ad litem, may allege that he or she has -^sa^since become insane since the marriage, but that can be proved the marriage, under a simple traverse, as the insanity alleged in the petition must be insanity existing at the time of the mar- riage, insanity supervening afterwards being no ground for a decree of nullity. Form 81. Answer to Petition for Nullity on ground of Bigamy. Answer to petition for [Commencement as in Form 79, p. 433.1 nullity on L r J ground of 1. That he denies that he was on the 10th day of June, bl gamy ” ^llCSTIl 0 * 1901, or at any other time, lawfully married to previous Isabella Isted, as alleged in the said petition. marriage. 2. That the real name of the said Isabella Isted is Isabella Itteringham, forasmuch as she was, on or about the 10th day of August, 1899, lawfully married to Isaac Itteringham, at the parish church 28 (2) 436 PRACTICE IN MATRIMONIAL SUITS. Nullity. Reply and subsequent pleadings. Medical inspectors. Hearing in camera. How appointed. Respondent refusing to attend for examination. Order for medical in- spection must of Blicking, in the county of Norfolk, and that the said Isaac Itteringham is still alive, and is at present residing at Aylsham, in Norfolk aforesaid, and that at the time that the said alleged marriage (if any) took place between the respondent and the said Isabella Itteringham (otherwise Isabella Isted) the said marriage between her and the said Isaac Itteringham was in force and effect, and in nowise annulled, dissolved, or abrogated. [ These 'paragraphs can easily he altered to fit the case of the wife respondent. Continue and conclude as in Form 79, p. 433. For the practice as to reply and subsequent pleadings, see ante, pp. 355 — 361.] In nullity cases on the ground of impotence medical evidence as to the condition of the parties is necessary. For the purpose of obtaining this, the solicitor for the petitioner, as soon as the answer is filed or the time for doing so has expired, or no appearance has been entered, should take out a summons for the appointment of medical inspectors for the purpose of examining the parties. This summons, among other things, asks that the case may be heard in camera. [. For form, see title “ Practice as to Motions and Sum- monses,” p. 511.] These inspectors are always appointed by the registrar, and neither of the parties has any voice in the matter. Either party can obtain the appointment of medical inspectors. If either party refuse to obey the order for medical examination, the other party is not to be thereby pre- judiced, and the petitioner will not be prevented from proceeding to trial. The order for medical inspection must in every case be made before applying for the registrar’s certificate that SUITS FOR NULLITY OF MARRIAGE. 437 the pleadings are in order, for the purpose of setting the cause down. {See ante, p. 369.) If an appearance has been entered, the summons can be served on the opposite party’s solicitor, or at the address given for service. If the respondent has not appeared, it is not necessary to serve the summons, but the order and the notice of appointment made upon it must be per- sonally served, or substituted service applied for. The practice as to obtaining substituted service, affi- davits in support, &c., is the same as in the case of sub- stituted service of a citation (ante, pp. 304 — 314), with this important difference, that in the present case the application is made by summons to a judge in chambers , instead of by motion in open Court. The order of appointment is made in the terms of the summons. The solicitor for the party claiming a decree of nullity is responsible for the medical inspector’s fees. From five to ten guineas are generally allowed to each inspector for the examination. Extra fees will of course have to be paid to the inspectors to attend and give evidence in Court, but, as a rule, only one fee will be allowed for this on taxation. The medical inspectors have to attend before the regis- trar to be sworn, and the parties have to be identified in their presence. The solicitor for the party claiming a decree of nullity fixes the day for the swearing of the inspectors and identification of the parties, and gives notice of the appointment to the Divorce Registry. He then prepares the oath for the medical inspectors and minute of identi- fication of the parties, forms of which can be obtained at the Divorce Registry, Boom 43. Nullity. bemadebefore applying for registrar’ 8 certificate. Summons for inspectors, order, notice of appoint- ment ; service of. Substituted service ; mode of applying for. Appointment made in terms of summons. Solicitor to party claiming decree of nullity responsible for medical inspector’s fees. Swearing inspectors and identifi- cation of parties. Ibid, appoint- ment for. 438 PRACTICE IN MATRIMONIAL SUITS. Nullity. Oath of inspectors, form of. Minute of swearing in- spectors, and identification of parties. Form 82. Oath to Medical Inspectors in a Suit for Nullity on the ground of Impotence. B. (otherwise K.) v. K. F. S. and A. F. You are produced as inspectors in a cause depending in the Probate, Divorce and Admiralty Division of His Majesty’s High Court of Justice, entitled B., otherwise K. v. K., to examine and inspect the parts and organs of generation of B., otherwise K., the peti- tioner in this cause, and also of K., the respondent in this cause. You respectively swear that you will faithfully and to the best of your skill inspect and examine the parts and organs of generation of each of them the said B., otherwise K., and K., and make a just and true report in writing whether the said B., otherwise K., is or is not a virgin, and whether she hath or hath not any impediment on her part to the consummation of marriage, and whether such impediment (if any) can be cured by art or skill; and also whether the said K. is capable of performing the act of generation, and (if incapable) whether such his incapacity can he cured by art or skill; and that one of you will deliver such report under your hands and seals, closely sealed up, to one of the registrars of the said Division. Sworn at the Divorce Registry, j Somerset House, Strand, in > X. Y., Registrar, the County of Middlesex . ) Form 83. Minute of Medical Inspectors being Sworn, and of Identification in a Suit for Nullity on the ground of Impotence. B. (otherwise K.) v. K. On , the day of , 19 , before the undersigned registrar of the said Division: SUITS FOR NULLITY OF MARRIAGE. 439 Personally appeared F. S., of , in the county of , doctor of medicine, and A. F., of , in the county of , surgeon, who were respectively appointed by order of made herein, and dated the day of , 19 , as inspectors to inspect and examine the parts and organs of generation of Brother- wise K., the petitioner in this cause, and also of K., the respondent in this cause; and to report in writing whether the said B., otherwise K., is or is not a virgin, and whether she hath or hath not any impediment on her part to pre- vent the consummation of marriage, and whether such impediment (if any) can be cured by art or skill; and also whether the said K. is capable of performing the act of generation, and (if incapable) whether such his incapacity can be cured by art or skill; and who were respectively duly sworn to inspect and examine accordingly. Then appeared personally the said B., otherwise K., the petitioner, who in the presence of the said inspectors and of the said registrar and of the respondent, acknowledged herself to be the petitioner or party proceeding in this cause. Then appeared personally also the said K., the respon- dent, who in the presence of the said inspectors and of the said registrar and of the petitioner, acknowledged himself to be the respondent or party proceeded against in this cause. X. Y., Registrar. The registrar swears the inspectors in the above form word by word, but they do not sign the oath. Each party is then identified by the solicitors in the presence of the registrar and the inspectors. The solicitors for both parties must attend the identification of each, and, though it is not necessary, they are generally identified on the same day to avoid inconvenience to the solicitors and in- spectors. But whether they attend on the same day or Nullity. Minute of swearing in- spectors, and identification of parties. Ibid. proceedings before registrar. 440 PRACTICE IN MATRIMONIAL SUITS. Nullity. Parties identified separately. Medical examination of parties. Report of medical inspectors. Parties residing in the country. Proceedings after appoint- ment of dis- trict registrar referred to district registry. Respondent out of the jurisdiction. not, the parties are always identified separately and apart, so that they may not be compelled to meet each other unnecessarily. The medical inspectors make the appointment for the examination of each of the parties, which takes place at the registry, at the house of one of the inspectors, or at some other convenient place. In cases of nullity on the ground of impotency, when the respondent has not appeared to the citation or before the medical inspectors, an affidavit of service by the clerk who served the order for medical inspection, and the notice of the appointment thereunder, will be required before the registrar’s certificate is granted. The inspectors make and sign their report, which is brought into the Divorce Registry, and left with one of the registrars, who opens it and signs a minute drawn in the registry, after which it is filed, and can then be inspected by either party, who can bespeak an office copy of it. If the parties reside in the country and do not desire to come up to London, the registrar will appoint local medical inspectors. The oath and minute of identification are then prepared in London and sent down to the District Probate Registry. The district registrar then carries on the proceedings as above, and receives the report of the inspectors, which he at once forwards by post to the Divorce Registry. Sometimes when the respondent is out of the jurisdic- tion, the registrar will appoint local inspectors, and send the proceedings to the proper official of the local Court to make arrangements for the identification and examination of such respondent on the spot. SUITS FOR NULLITY OF MARRIAGE. 441 FEES. £ s. Nullity. d. Fees. Filing oath ...... 0 2 6 „ minute of identification 0 2 6 ,, report ..... 0 2 6 ,, minute of registrar 0 2 6 „ copy report (per folio) . 0 0 4 [ The following costs may possibly be allowed on taxation :] Costs possibly allowed. Drawing summons for appointment of medical inspectors .... 0 5 0 Attending issuing ..... 0 6 8 Service ....... 0 3 6 Attending summons .... 0 6 8 Attending Dr. obtaining his consent to act ...... 0 6 8 Attending Dr. obtaining his consent to act ...... 0 6 8 Writing petitioner .... 0 6 8 Drawing oath ..... 0 6 8 Filing registrar’s minute 0 6 8 Attending registry obtaining appointment 0 6 8 Notice thereof to inspectors . 0 3 6 Attending meeting. .... 0 6 8 Filing report and ordering copy 0 6 8 [And all fees paid out of pocket as above; see also post, pp. 540 — 637.] Where the examination takes place in the country, the district registrar, for acting as commissioner for the prin- cipal registrar, is allowed a fee of three guineas. [For 'practice as to setting down cause, and hearing or trial, see ante, pp. 368 — 388.] Examination in the country. Setting down cause, hearing or trial. By virtue of the provisions of the Matrimonial Causes ^ree for^ Act, 1873 (36 & 37 Viet. c. 31), s. 1, a decree in a Suit nisi in the first for nullity of marriage is made a decree nisi in the first lnstance - instance. ( See post, p. 488.) 442 PRACTICE IN MATRIMONIAL SUITS. DAMAGES. Practice as to Damages. Disposition of damages. Mat. C. Act, 1857 (20 & 21 Viet. c. 85), s. 33. Ibid, petition limited to damages only. Ibid, form of. Prayer of petition limited to damages only. [See Part I., Chap. VII., ante, pp. 133 — 138; and as to necessity of damaqes being assessed by a jury in every case, ante, pp. 368, 377—389.] By sect. 33 of the Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), . . . 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.” By the earlier part of the same section, a husband whose wife has committed adultery is empowered to file a petition limited to claiming damages only against the adulterer, without asking for any other sort of relief. Since the coming in force of the Matrimonial Causes Act, 1857, such petitions have been exceedingly rare, and are now almost unheard of, so that they are scarcely worth consideration . If, however, it should be desired to file a petition of this kind, it will be only necessary to follow Form 5, ante, p. 295, and to conclude with the following form of prayer, which omits all reference to any specific relief, the claim for “such other and further relief as may be meet” being inserted merely to cover any application as to costs. Form 84. Prayer of Petition limited to only claiming Damages from the Adulterer under Mat. C. Act, 1857, s. 33. Your petitioner therefore humbly prays — “ That your Lordship will be pleased to ascertain by the verdict of a jury the amount of damages to be paid by the said Robert Marshland, and to DAMAGES. 443 direct how such damages may be applied, and that your petitioner may have such other and further relief as may be meet.” (Signed) Timothy Trowse. [The 'practice on such a petition would he the same as in a suit for dissolution, ante, pp. 285 — 390.] In suits for dissolution, if the Court does not decide at the hearing in what way the damages should be applied, it usually makes an order that the amount awarded be paid into Court within a certain time, which is fixed according to the circumstances of the case. Fourteen days in ordinary cases is often fixed. The petitioner then takes out a summons before the judge in chambers asking the Court to decide in what way the damages are to be applied. If the usual order is made for the damages to be paid into Court within fourteen days, it is very difficult to enforce the payment of the damages, but a petitioner may apply for the damages to be paid to him personally (a) instead of into Court. If this be done the petitioner is then enabled to sue the co-respondent for the amount of the damages (b). [See “ Practice as to Motions and Summonses pp. 511 —524.] The petitioner generally lays before the judge in chambers his view as to the disposition of the damages, which should be stated in the summons. [For the views generally taken hy the Court as to the disposition of the damages, see ante, p. 135 et seq. For the manner in which the payment of damages is enforced, see post, title “ Practice as to Enforcing Decrees and Orders p. 638. For fees and costs, see post, pp. 540 — 603.] (a) Pritchard v. Pritchard and Bean (1870), L. R, 2 P. & D. 53 ; 39 L. J. P. 46; 22 L. T. 629; Patterson v. Patterson and Graham (1870), L. R.2P.& D. 189. (5) Ex parte Fryer , In re Fryer (1886), 17 Q. B. D. 718 ; 55 L. J. (Q. B.) 478; 55 L. T. 276. Damages. Practice on such petition. Disposition of damages. Exercise of discretion by Court ; practice as to. Summons before judge. Disposition of damages, views of Court as to. Enforcing payment of damages. 444 PRACTICE IN MATRIMONIAL SUITS. CUSTODY AND ACCESS. Practice as to. Custody not prayed for in petition. Separate petition must be filed. Order for custody when asked for at hearing. Interim orders, applications for. For custody now heard on summons by judge in chambers. Practice as to Custody of and Access to Children. [$ee on this subject Part /., Chap. Vlll., ante, pp. 139 — 147.] If the custody of the children of the marriage is not prayed for in the petition (see ante, pp. 145 — 147), it is necessary to file a separate petition for that purpose, which must be filed and served in the same way as an ordinary petition (ante, p. 306). It must, however, be remembered that the father has the common law right to the custody of his children, and there is therefore no necessity to ask for custody in a husband’s petition; indeed, it is better not to do so, because then he is not hampered should he wish to take the children out of the jurisdiction of the Court. Where the custody of the children is asked for at the hearing, the order for such custody forms part of the decree. \_As to the powers of the Court to grant interim orders for custody of children , see ante, pp. 139, 140.] By rule 104, “ Before the trial or hearing of a cause a husband or wife who are parties to it may apply for an order with respect to the custody, maintenance, or educa- tion of or for access to children, issue of their marriage, to the Judge Ordinary, by motion founded on affidavit.” Although no fresh rule on the subject has ever been promulgated, except rule 212, which applies to “ access ” only, it has been for many years the practice to hear these applications on a summons before a judge in chambers, instead of on motion in open Court. But such applica- tions are not heard before a registrar in the first instance. CUSTODY OF AND ACCESS TO CHILDREN. 445 And by rule 212, “ Application on behalf of a husband or wife, parties to a cause, for access to the children of their marriage may hereafter be made by summons before one of the registrars, who shall direct such order to issue as he thinks fit, subject to appeal to the Court by either party dissatisfied with the order as authorized by rule 184.” A summons for an interim order as to custody or access may be taken out by the petitioner at any time after service of the citation, or by the respondent at any time after entering an appearance. Notice must be given to the opposite party. The order in terms prohibits the person to whom the custody of the children is given from removing them outside the jurisdiction of the Court. A copy of the order signed by the judge must be served on any person or persons who may happen to have the custody of the chil- dren at the time such order is made. If it is desired to remove the children out of the juris- diction of the Court, application must be made to a judge on summons for leave to do so. [For the 'practice as to summons, see post, title “ Practice as to \ Motions and Summonses p. 511.] By rule 195, “ Rules from 97 to 102, both inclusive, of the rules and regulations for this Court, bearing date 26th December, 1865, shall, so far as the same are applic- able, be observed in respect to applications by petition, after a final decree in a cause for orders and provision with respect to the custody, maintenance, and education of children, the marriage of whose parents was the subject of the decree, under the authority given to the Court by 22 & 23 Viet. c. 61, s. 4.” [For the powers of the Court under the above section [Mat. C. Act, 1859), see ante, p. 139; and for rules 97 — 102, see title “ Practice as to Alimony and Maintenance p. 446.] Custody and Access. For access on summons by- registrar in first instance. Time for taking out summons. Children must not be moved out of jurisdiction of Court, except by leave of a judge obtained on summons. Applications after final decree under Mat. C. Act, 1859. 446 PRACTICE IN MATRIMONIAL SUITS. ALIMONY AND MAIN- TENANCE. Powers of Court. Alimony pendente lite. Permanent alimony and maintenance. Restraining husband from parting with property. Practice since 1857. “ Main- tenance/’ “ Alimony.” Rules of Court. Distinction between dissolution and other suits. Divorce rules. Time to apply for. Practice as to Alimony and Maintenance. [The subject of alimony and maintenance is treated ante, Part 1 ., Chap. IX., pp. 148 — 168. For the powers of the Court generally, see ante, pp. 148 — 158; for principles as to alimony pendente lite, see pp. 148 158; as to permanent alimony and maintenance, see pp. 158 — 168; and for grounds on which Court restrains husband from parting with his property before order made, see pp. 165, 166.] Applications to the Court for alimony pendente lite are regulated by the rules and regulations of the Divorce Court, 81 to 94 inclusive, and 189 to 192 inclusive. The word “ maintenance ” is used when the permanent provision for a wife after a decree of dissolution is in- tended; the expression “ permanent alimony ” paeans the permanent provision for the wife in all other suits. The practice as to 11 permanent alimony ” and 11 main- tenance ” is regulated by rules 84 — 88, 91 — 103, 189 — 192, and 214—218. It must be borne in mind that in allotting alimony in suits for dissolution, the Court is guided by its own prac- tice made by virtue of the powers conferred upon it by the Divorce Acts. In other suits it is still bound by the practice of the Ecclesiastical Courts. {See ante, pp. 150, 151.) The latter rules were made some years later than the former, and vary or modify the practice under them to a considerable extent. By rule 81, “ The wife, being the petitioner in a cause, may file her petition for alimony pending suit at any time after the citation has been duly served on the husband, or after order made by the J udge Ordinary to dispense with ALIMONY AND MAINTENANCE. 447 such service, provided the factum of marriage between the parties is established by affidavit previously filed.” And by rule 82, “ The wife, being the respondent in a cause, after having entered an appearance, may also file her petition for alimony pending suit.” The following forms for alimony will be found useful as precedents for petitions both for alimony pendente lite and permanent: — Form 85. Petition for Alimony pendente lite , or Permanent Alimony (1). In the High Court of Justice, Probate, Divorce and Admiralty Division. (Divorce.) Trowse (Charlotte) v. Trowse (Timothy). Or , Between Charlotte Trowse, petitioner, and Timothy Trowse, respondent. The 14th day of August, 1911. The petition of Charlotte Trowse, of The Loke Cottage, St. Mary-in-the-Marsh, in the county of Suffolk, the law- ful wife of Timothy Trowse, and the respondent in the above cause, showeth — 1. That the said Timothy Trowse does now carry on and has for many years past carried on the business of a smack owner and fish buyer, at Yarmouth, in the county of Norfolk, and from such business he derives the net annual income of £ 2. That the said Timothy Trow.se is now or lately was possessed of or entitled to proprietary shares of the railway company, amounting in value Alimony and Maintenance. Petitions for alimony, forms of. Simple form of both pendente lite and per- manent. 448 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. Ibid. Ibid, giving fuller details of income. to £ , and yielding a clear annual dividend of £ 3 . That the said Timothy Trowse is possessed of certain stock-in-trade in his said business of a of the value of £ [In same manner state particulars of any other property which the husband may possess .] Your petitioner therefore humbly prays — That your Lordship will be pleased to decree her such sum or sums of money by way of alimony pendente lite ( or permanent ali- mony) as to your Lordship shall seem meet. Form 86. Petition for Alimony pendente lite , or Permanent Alimony (2). [( Commence as in Form 85, substituting the initials A. B. v. C. B. for Trowsev. Trowse.] 1. That the said A. B. has for many years carried on the business or profession of a music-hall artiste, and from such business or profession derives the net annual income of £5,000 or thereabouts. 2. That one E. F. and divers other persons are indebted to the said A. B. in several sums of money, amounting in the whole to £3,000 or thereabouts. 3. That the said A. B. possesses policies of assurance effected by him on his own life, or on the life of the said E. F., and that the present marketable value of such policies is £3,000 or thereabouts. 4. That the said A. B. has, or had prior to the com- mencement of this suit, plate, pictures, furniture, books, jeSvellery, professional costumes, and other chattels and effects, at his residence, No. 562, Hyde Park Square, W., and that the said property is of the value of £1,500 or thereabouts. ALIMONY AND MAINTENANCE. 449 5. That the said A. B. is possessed of other valuable property, consisting of shares, debentures, or other stock of railway, insurance, or other companies, and in the public funds of Great Britain, and elsewhere, and in bonds, bills, notes, other secu- rities, and in cash standing to his account at the Bank, but the exact value of such property is at present unknown to your petitioner. 6 . That the said A . B . holds the said premises situated at No. 562, Hyde Park Square, W., aforesaid, on a lease of sixty years, more or less, at a ground rent of £40 per annum, and that he has at considerable expense effected extensive repairs and improve- ments upon the said premises, and that the value of the said lease of the said premises is thereby greatly increased, and amounts to the sum of £3,000 or thereabouts. (Signed) C. B. By rule 88, “A copy of every petition for alimony, answer and reply, must be delivered to the opposite party, or to his or her proctor, solicitor, or attorney, on the day the same is filed.” A plain copy is sufficient. If the opposite party is appearing by a solicitor, the copy is left at such solicitor’s office; if in person, then at the address given for service. But in the case of a petition, rule 88 only applies to cases where the husband has entered an appearance. If he has not appeared the petition for alimony must be personally served, or leave for substituted service obtained . [Practice same as in obtaining leave for substituted ser- vice of citation, see ante, pp. 308 — 314.] By rule 84, “ The husband shall, within eight days after the filing and delivery of a petition for alimony, file his answer thereto upon oath.” The husband’s answer must therefore he drawn in the form of an affidavit. Alimony and Maintenance. Petition for, form of. Service of petition for alimony ; answer and reply. Answer, form of. D.M.C. 29 450 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. Entering appearance by husband. Answer to Form 85. And by rule 85, “ The husband, being respondent in the cause, must enter an appearance before he can file an answer to a petition for alimony.” This appearance must be entered within the eight days allowed for filing the answer. The husband can, if he pleases, enter an appearance to the petition for alimony only, instead of entering it to the original petition in the suit, in which case he can only be heard on the questions relating to alimony, but cannot file an answer to or be heard on any of the charges in the original petition. [For 'practice as to appearance, see ante, pp. 337 — 341.] The husband should in his answer state what his income has been during the three years prior to the commencement of the suit. But he may state any facts, from which the Court may draw conclusions as to his present income: Williams v. Williams (1867), L. R. 1 P. & D. 370; 36 L. J. P. 39; 15 L. T. 249; see also Nohes v. Nohes (1863), 3 S. & T. 529; 33 L. J. P. 24; Crampton v. Crampton and Armstrong (1863), 32 L. J. P. 142; and a case in the very early days of the Divorce Court, Kelly v. Kelly, 1 Ecc. & Ad. 412. Form 87. Answer to Petition for Alimony, as in Form 85. [. Reading as in Form 85.] The answer of the above-named respondent to the peti- tion for alimony pendente life filed herein by the above- named petitioner. I, Timothy Trowse, of 125, King Edward’s Hill, Yarmouth, in the county of Norfolk, Smackowner, make oath and say as follows:— 1 . In answer to the 1st paragraph of the said petition, I admit that I do carry on and have for years past carried on the business of a Smackowner and Fishbuyer, at Yarmouth, aforesaid, as in the said 1st paragraph alleged, but I say that I derive from ALIMONY AND MAINTENANCE. 451 the said business the gross annual income of £ and no more, and that such gross annual income is subject to the following annual deductions neces- sarily incurred in and about acquiring the said income, that is to say, £ for rent, £ for gas, &c., &c. ( according to the facts): 2. In answer to the 2nd paragraph of the said petition, I admit that I am possessed of the said shares in the 2nd paragraph mentioned, but I deny that they yield a clear annual dividend of £ or any annual dividend whatever, the same being now of no value: 3. In answer to the 3rd paragraph of the said petition, I say that the stock-in-trade in my said business, of which I am possessed, is of the value of £ , and not of the value of £ as in the said 3rd paragraph alleged: 4. I say that I have no other property or source of income whatsoever than as is in this my answer above set out: 5 . I say that my said wife Charlotte Trowse is possessed of or entitled to [Here state any separate property to which the wife may he entitled . ] Sworn, &c. (Signed) Timothy Trowse. Form 88. Answer to Petition for Alimony, as in Form 86. [Commence as in Form 87.] 1 . I admit that I carry on the business or profession of a music-hall artiste, as alleged in paragraph 1 of the said petition, but I say that the gross annual income I derive therefrom (computed on an average of my last three years’ salaries) does not exceed 29 (2) Alimony and Maintenance. Answer to Form 85. Answer to Form 86. 452 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. Ibid. £1,200, and the expenses attendant on carrying on my said business or profession amount annually to £461 or thereabouts. Full particulars of such expenses are set forth in the 1st schedule hereto. 2. I admit that the said E. F. and one other person are indebted to me as alleged in paragraph 2 of the said petition, but such debts amount to £865 and no more, as set forth in the second schedule hereto, but I say with respect to £200, part of the said gross sum of £865, the same is due to me from one G. H. for money won at cards, and is not recover- able by me from the said G. H. either in law or equity. Except as above, no person is at present indebted to me in any sum or sums whatever. 3. I am not possessed of any policy or policies of assurance, as alleged in paragraph 3 of the said petition. 4. I admit that I have now in my possession divers articles of plate, pictures, furniture, books, jewel- lery, professional costumes, and other chattels and effects at my residence, No. 562, Hyde Park Square, W., as alleged in paragraph 4 of the said petition, but I say that the same amount in value to the sum of £850 and no more. 5. I admit that I am possessed of other property, as alleged in paragraph 5 of the said petition, but the gross value of such property amounts at the pre- sent time to £805 14s. 6d. and no more. Full particulars of such property are set forth in the 3rd schedule hereto. 6. I admit that I hold the premises situated No. 562, Hyde Park Square aforesaid, on a lease as alleged in paragraph 6 of the said petition, but I say there are only four years thereof unexpired, and that I have not made any extensive repairs or improve- ments in the said premises as alleged in the said paragraph 6 of the said petition, and, on the con- ALIMONY AND MAINTENANCE. 453 trary, I verily believe that when the said lease expires I shall have to pay a large sum in respect of dilapidations thereto, and I verily believe the said lease to be of no value. 7. The petitioner, when she left her home, took with her the sum of £100 in cash, and a quantity of plate, jewellery, and other articles (such cash, plate, jewellery, and other articles being my property), all of which she refuses to return, and declines to render me any account of the same . 8. The petitioner, under the will of her father, J. D., deceased, late of , in the county of , derives for her sole and separate use a net annual income of £250 or thereabouts. [ Conclude as in Form 87.] (Signed) A. B. Schedule I. Gross annual income . Deductions . Expenses of keep of a brougham and two horses engaged entirely in driving the respondent about to fulfil his profes- sional engagements at music halls and other places ..... Coachman’s wages at the rate of £1 per week Coachman’s board wages at the rate of 12s. 6d. per week .... Wages and keep of manservant or valet, who also acts as dresser Professional costumes (per annum, taken on an average of three years). £ s. d. 1,200 0 0 176 0 0 52 0 0 32 10 0 84 10 0 40 6 8 £385 6 8 Alimony and Maintenance. Answer to Form 86. Schedule to answer to Form 86. Net annual income . £814 13 4 454 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. Ibid. Service of answer. Wife may apply to registrar for further and fuller answer. Schedule II. hist of persons indebted to the respondent , and the amount of their respective debts : — £ s. d. E. F 665 0 0 G. H 200 0 0 £865 0 0 Schedule III. List of property mentioned in paragraph 6 of respondent' s answer : — £500 X. Y. Z. Railway £100 debenture stock (present value £106) 1,000 G. W. T. Mine £1 stock fully paid up (present value 2s. 6cL) . 1,000 R. V. Mine £1 stock fully paid up (present value 6d.) . Balance at the Bank 530 0 0 125 0 0 25 0 0 125 14 6 £805 14 6 \For service of answer, see rule 88, ante, p. 449.] If a husband fails to answer, he cannot cross-examine the wife’s witnesses, or call evidence to contradict them: Con- stable v. Constable (1869), L. R. 2 P. & D. 17; 39 L. J. P. 17; 21 L. T. 401. By rule 86, “ The wife, if not satisfied with the hus- band’s answer, may object to the same as insufficient, and apply to the Judge Ordinary on motion to order him to give a further and fuller answer, or to order his attend- ance on the hearing of the petition for the purpose of being examined thereon.” ( See also rule 191, post, p. 457.) And by rule 189, “ Application for an order for a further and fuller answer to a petition for alimony, here- tofore made to the J udge Ordinary on motion in pursuance ALIMONY AND MAINTENANCE. 455 of rule 86, shall hereafter be made by summons before one of the registrars.” [ These two rules must of course be read together .] A registrar may order inspection of a ledger relating to partnership accounts of respondent: Carew v. Carew, (1891) P. 360; 61 L. J. P. 24; 65 L. T. 167. A respondent admitted an income of 3,000L a year, but objected to produce his books on the ground that they would disclose private matters relating to the partnership. Held, that the answer was in- sufficient, and he must file a further and better answer; but that until such further answer had been filed, he ought not to be compelled to disclose the partnership accounts, or to be cross-examined on them. Tonge v. Tonge, Anderson and Eykyn, (1892) P. 51; 61 L. J. P. 87; 67 L. T. 390. By rule 87, “ In case the answer of the husband alleges that the wife has property of her own, she may (within eight days) file a reply on oath to that allegation; but the husband is not at liberty to file a rejoinder to such reply without permission of the Judge Ordinary, or of one of the registrars in his absence.” [ Now a registrar in the first instance. Rule 181, ante, p. 284.] Otherwise no reply is necessary. The reply must take the shape of an affidavit. The following form is suggested as a precedent: — Form 89. Reply to Form 88. [Heading as in Form 86.] I, C. B., of , in the county of , in reply to the answer of the said A. B. to the petition for alimony filed in this cause, make oath and say as follows: — - 1. I admit that when I left home I took with me the sum of £100 in cash, and a quantity of plate, jewellery, and other articles, as alleged in para- Alimony and Maintenance- Production of books, &c. Cross- examination of husband. Reply and subsequent pleadings. Reply must be by affidavit. Reply to Form 88, form of. 456 Alimony and Maintenance. Ibid. Rejoinder. Allotment of alimony, how applied for. PRACTICE IN MATRIMONIAL SUITS. graph 7 of the said answer, but I say that the said cash, plate, jewellery, and other articles are my personal property, and form part of my separate estate, as shown in the next paragraph. 2. I admit that under the will of my late father I received a legacy amounting to £5,000, and no more, but I say that I lent the whole of such sum of £5,000 to my husband, the said A. B., who has never repaid me any portion of the same, except the sum of £100 in cash and the plate, jewellery, and other articles in the said 7th paragraph men- tioned, which were valued at £400, and which I agreed with the said A. B. to accept in part pay- ment of the said principal sum of £5,000. 3. I further say that my whole separate estate consists of the said sum of £100 in cash, the said plate, jewellery, and other articles, and the balance of £4,500 at present owing to me by my husband, the said A. B., as shown in the last paragraph, and that, except as above, I have now in my pos- session no sum or sums of money, jewellery, or other property of any sort whatever. Sworn, &c. (Signed) C. B. \_For service of reply, see rule 88, ante, p. 449.] It is possible that the husband would desire to file a rejoinder to a reply such as that suggested in the last form, but this he cannot do without leave of a registrar. [See rule 87, ante, p. 455.) By rule 89, “After the husband has filed his answer to the petition for alimony (subject to any order as to costs), or, if no answer is filed, at the expiration of the time allowed for filing an answer, the wife may proceed to examine witnesses in support of her petition, and apply by motion for an allotment of alimony pending suit, notice of the motion, and of the intention to examine witnesses, ALIMONY AND MAINTENANCE. 457 being given to the husband, or to his solicitor, four days previously to the motion being heard and the witnesses examined, unless the Judge Ordinary shall dispense with such notice.” By rule 90, “ No affidavits can be read or made use of as evidence in support of or in opposition to the averments contained in a petition for alimony, or in an answer to such a petition, or in a reply, except >such as may be required by the Judge Ordinary or by one of the registrars.” By rule 191, “All applications for an allotment of alimony pending suit, and for an allotment of permanent alimony heretofore made to the Court by motion in pur- suance of rules 89 and 91, shall hereafter be referred to one of the registrars at the principal registry, who shall investigate the averments in the petition for alimony, answer, and reply, in the presence of the parties, their proctors, solicitors, or attorneys, and who, if he think fit, shall be at liberty to require the attendance of the hus- band for the purpose of being examined or cross-examined, and to take the oral evidence of witnesses, and to require the production of any documents or to call for affidavits, and shall direct such order to issue as he shall think fit, or refer the application, or any question arising out of it, to the Judge Ordinary for his decision.” [/See also rule 86, ante, p. 454.] It has been decided by the Court of Appeal that a wife has not an absolute right to cross-examine the husband, and the . registrar is entitled to read the affidavits beforehand, instead of doing so in the presence of the parties. On appeal, affidavits ought not to be filed to show what took place before the registrar; if tfie Court desires information, it will consult the registrar himself. Sykes v. Sykes, (1897) P. 306; 66 L. J. P. 162; 77 L. T. 150. And by rule 195, “ Any person heard on the reference as to alimony before one of the registrars, objecting to the order issued under his direction, may (subject to any order Alimony and Maintenance. Allotment of alimony, how applied for. Ibid. Position of wife as to cross- examination of husband. Appeal from registrar to judge in chambers. 458 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. Appointment before regis- trar, how applied for. Notice of appointment sent from registry to wife’s solicitor. Form of notice. Counsel not heard on a first appointment. Notice of appointment to opposite party. Allotment made on first appointment if possible. Practice : where husband has appeared. Ibid, where husband has not entered appearance. as to costs) apply to the Judge Ordinary on summons to rescind or vary the same.” [These four rules must, of course, he read together . ] As soon as the pleadings are complete, the wife’s soli- citor attends at the Divorce Registry (Room 38) and applies for an appointment, by filling up: a form which will be supplied him there, and paying a fee of 10s. Due notice of the appointment is sent from the Divorce Registry to the wife’s solicitor, or to her address for ser- vice if she is conducting her case in person . The notice states the date and hour of the day on which the registrar will “ hear the solicitors as to alimony.” It is important to remember that the registrars will not hear counsel at all on a first appointment for allotment of alimony. The question of whether the party employing counsel is willing to bear the expense in any event will not be considered. Counsel will merely be requested to leave the room. Notice of the appointment must be given to the other side one clear day before. Whenever it is possible to do so, the registrar makes an allotment of alimony at the first appointment — that is to say, on the petition and answer alone. If he considers there are not sufficient materials before him, he can make an order for further answer, or that the husband attend before him to be cross-examined and produce his books, &c. ( a ). Either party dissatisfied with the registrar’s de- cision can appeal to the judge in chambers. ( See rule 192, ante, p. 457.) [As to issuing subpoenas for the attendance of witnesses, see post, title “ Practice as to Evidence p. 604.] Where the husband, after due service, has not entered an appearance either to the original petition in the suit or («) Time for attendance must be stated in the order: see Town end v. Townend (1906), 93 L. T. 680 (C. A.). ALIMONY AND MAINTENANCE. 459 to the petition for alimony pendente lite, or even if he has appeared but has not filed an answer, it is usual before proceeding to allotment for the registrar to require gn affidavit of service of the petition for alimony and the notice of appointment. Form 90. Affidavit of Service of Petition for Alimony. In the High Court of J ustice, Probate, Divorce and Admiralty Division. (Divorce.) Trowse (Charlotte) v. Trowse (Timothy). Or , Between Charlotte Trowse, petitioner, and Timothy Trowse, respondent. I, J. J., clerk to Messrs. B. & J., of 225, Coleman Street, solicitors for the plaintiff in the above cause, make oath and say as follows: — That I duly served the petition for alimony dated the 14th day of August, 19 , and filed in the above cause (“ on the respondent in person,” or “on W.M., the solicitor for the respondent,” as the case may be), by leaving with (“her” or “him”) a true copy thereof at (“The Loke Cottage, St. Mary-in-the- Marsh, in the county of Suffolk,” or “ 66, Frederick’s Place, Old Jewry, in the City of London”) on the said 14th day of August, 19 Sworn, &c. (Signed) J. J. In such case the registrar will require some evidence of the husband’s means, other than that of the wife, who ought to be prepared with affidavits from some indepen- dent persons, showing the approximate amount of the Alimony and Maintenance. Affidavit of service of petition for alimony, form of. Evidence of means in cases where husband has not appeared. 460 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. Amount of, fixed by consent. Court may direct payment of alimony to wife or to her trustee. Authority to pay to trustee. husband’s property, the profits of his business, or his salary if an employe. [. For the amount usually awarded as alimony pendente lite, see ante, pp. 154 — 157.] Sometimes the amount of alimony pendente lite is fixed by consent, even in undefended suits. In such a case the order is obtained by a consent summons before the regis- trar. [/See post, title “ Practice as to Motions and Summonses ,” p. 511. A wife is always considered innocent in estimating the amount to be allotted to her for alimony pendente lite. Smith v. Smith and Tremsaux (1863), 4 S. & T. 228; 32 L. J. P. 91; Crampton v. Crampton and Armstrong (1863), 32 L. J. P. 142; Phillips v. Phillips (1865), 34 L. J. P. 107; D’Oyley v. D'Oyley and Baldie (1859), 4 S. & T. 226; 29 L. J. P. 165.] By the Matrimonial Causes Act, 1857 (20 & 21 Viet, c. 85), s. 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 ex- pedient, and may from time to time appoint a new trustee, if for any reason it shall appear to the Court expedient so to do.” And by rule 94, “ Alimony, pending suit, and also permanent alimony, shall be paid to the wife, or to some person or persons to be nominated in writing by her, and approved of by the Court, as trustee or trustees on her behalf.” If the wife wishes to avail herself of the provisions of this section, she must file an authority in writing in the Divorce Registry, paying a fee of 2s. 6d., which is the regular fee for filing all documents. ALIMONY AND MAINTENANCE. 461 The authority should be more or less in the following form: — Form 91. Authority to Trustee to receive Alimony pendente lite , on behalf of a Wife. [Reading as in Form 90.] I hereby authorize Leonard Langham, of Binham, in the county of Norfolk, to receive from the respondent such alimony pendente lite as may be allotted to me by this honourable Court, and I respectfully request that the said Leonard Langham may be duly appointed for that pur- pose, and that the said respondent be ordered to pay to him such alimony as aforesaid, as trustee on my behalf. August 14th, 19 Charlotte Trowse, petitioner. In the presence of Joseph Jacques, clerk to Messrs. Brown & Jones, solicitors, 225, Coleman Street, E.C. [As to appointing the wife's solicitor as trustee to receive alimony pendente lite, see ante, p. 165.] It is not absolutely necessary that this authority should be filed before the order for payment is made. The wife may wish to have it paid to herself in the first instance,, and change her mind afterwards, in which case she is at liberty to file the above at any time after giving notice of her intention to the other side. Alimony is generally ordered to be paid in full. If the husband desires to deduct income tax, he must make special application for leave to do so at the time of allot- ment, but it is not in the least likely to be granted. The order for payment of alimony is served in the same Alimony and Maintenance. Ibid. form. Authority to trustee to receive alimony, form of. Above autho- rity may be filed after order made for payment of alimony. Alimony to be paid in full. Service of order for 462 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. payment of alimony pendente lite. Enforcing payment of. Applications to vary order by increasing or reducing amount of alimony ordered to be paid. Practice as to. When payment commences. When payment ceases. Ibid, in nullity suits. Ibid, suits for judicial separation. Alimony in suits in forma pauperis. way as the documents mentioned in rule 88. (See ante, p. 449.) (For the mode of enforcing payment of alimony pendente lite, see ante, p. 158; and post, title “ Enforcing Decrees and Orders ,” p. 638.] By rule 92, “A wife may at any time after alimony has been allotted to her, whether alimony pending suit or permanent alimony, file her petition for an increase of the alimony allotted by reason of the increased faculties of the husband, or the husband may file a petition for a diminu- tion of the alimony allotted by reason of reduced faculties; and the course of proceeding in such cases shall be the same as required by these rules and regulations in respect of the original petition for alimony, and the allotment thereof, so far as the same are applicable.” In order to prosecute proceedings under this rule it is only necessary to follow the practice laid down in the foregoing pages. [Alimony pendente lite is payable from the date of the service, not of the return, of the citation ( Nicholson v. Nicholson and Ratcliff e (1862), 31 L. J. P. 165); and ceases upon a verdict finding the wife guilty of adultery, unless otherwise ordered ( Dunn v. Dunn (1887), 13 P. D. 91; 57 L. J. P. 58; 59 L. T. 385); but see as to payment pending appeal, Butler v. Butler and Burnham (1890), 15 P. D. 13; 59 L. J. P. 11; 62 L. T. 123. In nullity cases alimony pendente lite is payable up to decree absolute. S. ( falsely called B.) v. B. (1884), 9 P. D. 80; 53 L. J. P. 63; see also Foden v. Foden, (1894) P. 307; 63 L. J. P. 163; 71 L. T. 279.] In suits for judicial separation, alimony pendente lite continues payable up to the date of the decree. [ See further as to when payment of alimony pendente lite ceases, ante, pp. 152, 153.] There is nothing to prevent alimony being allotted in a suit prosecuted in forma pauperis. ALIMONY AND MAINTENANCE. 463 An order for payment of alimony pendente lite is drawn Alimony and A v L M fllTltfmflTlP.ft up in the registry and signed by the registrar making it. 1 The respondent is ordered to pay, or cause to be paid to pa y me nt of the petitioner, alimony pending suit at the rate of £ form 0 ”?’ per annum “ to commence from the date of the service of the citation issued in this cause, to wit, on the day of ,19 The amount is usually ordered to be paid weekly; but sometimes, for the convenience of both parties, monthly. The expression “permanent alimony” applies only to Permanent suits for judicial separation. [. For the powers of the Court, see ante, pp. 158 et seq.; Powers of and for a list of rules regulating the practice with respect to ’ ru ] es it, see ante, p. 446.] By rule 91, “A wife who has obtained a final decree of Permanent, judicial separation in her favour, and has previously thereto filed her petition for alimony pending suit, on such decree being affirmed on appeal to the full Court, or after the expiration of the time for appealing against the decree, if no appeal be then pending, may apply to the Judge Ordi- nary by motion for an allotment of permanent alimony; provided that she shall, eight days at least before making such application, give notice thereof to the husband, or to his proctor, solicitor, or attorney.” And by rule 190, “A wife who has obtained a final decree of judicial separation, on such decree being affirmed on appeal, or after the expiration of the time for appealing against the decree if no appeal be then pending, may apply to the Court by petition for an allotment of per- manent alimony, though no alimony shall have been allotted to her pending suit, and the rules from 84 to 88, both inclusive, of the rules and regulations for this Court, bearing date 26th December, 1865, relating to petitions for alimony pending suit as varied by these and other additional rules and regulations shall, so far as the same 464 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. Mode of proceeding on applications for permanent alimony in cases where alimony pendente life has been allotted and the wife does not allege alteration in husband’s income. Ibid, where no alimony pendente lite has been allotted. Practice, same as in alimony pendente lite. Amount awarded. When payment commences. Amount arranged by consent. are applicable, be observed in respect to the proceedings upon such petitions for permanent alimony.” [ These rules (91 and 190) must be read together. See also rules 84, 85, 86 and 87, ante, pp. 449, 450, 454 — 455; rule 88, ante, p. 449; rule 91, supra; and rule 92, ante, p. 462.] Where alimony pendente lite has been allotted, no peti- tion for permanent alimony is necessary, unless the wife alleges that her husband’s income has increased. The wife’s solicitor applies in the Divorce Registry for an appointment, as in the case of alimony pendente lite, pays a further fee of 10s., and the proceedings continue as in applications for alimony pendente lite (ante, pp. 456 et seq.), except that eight days’ notice of this appointment must be given to the husband’s solicitor, or to the hus- band himself if he appears in person. Where no alimony pendente lite has been awarded, or where the wife alleges an alteration in the husband’s income, she must commence by petition. {See Forms 85 and 86, ante, pp. 447 — 448.) [ The petition is served in accordance with rule 88, ante, p. 449; the answer is as in Forms 87 and 88, ante, pp. 450 — 454; and the whole practice down to allotment and order for payment of permanent alimony is the same as in pro- ceeding for alimony pendente lite, ante, pp. 446 — 463. For the amount usually awarded by way of permanent alimony, see ante, pp. 158 — 162.] By rule 93, “ Permanent alimony shall, unless other- wise ordered, commence and be computed from the date of the final decree of the Judge Ordinary, or of the full Court on appeal, as the case may be.” The amount to be awarded may be agreed between the parties as in proceedings for alimony pendente lite. {See ante, p. 460.) ALIMONY AND MAINTENANCE. 465 If the cause is undefended, the order for payment of permanent alimony is made at once, but in a defended cause it is not made until the time allowed for appealing by sect. 55 of the Mat. C. Act, 1857, that is to say, three months, has expired. Application may be made to increase or reduce the amount ordered to be paid by way of permanent alimony as in the case of alimony pendente lite. ( See ante, p. 462.) [ For the manner of enforcing orders for the 'payment of permanent alimony, see post, title “ Enforcing Decrees and Orders p. 638.] The order for payment of permanent alimony is drawn up in the registry as in the case of an order for payment of alimony pendente lite. ( See ante, p. 463.) It is more or less in the same form, substituting the words “ perma- nent alimony” for the words “alimony pendente lite," and it is usually ordered to be paid quarterly instead of weekly. Form 92. Petition for Increase of Permanent Alimony. [Commencement as in Form 86.] A. B. v. C. B. The petition of A. B., of , in the county of , lawful wife of C. B., showeth — 1. That on the day of , 19 , your Lord- ship (or this honourable Court) pronounced a decree of judicial separation between me and the said C. B. on the ground that the said O. B. had been guilty of cruelty towards me. 2. That on the day of , 19 , and during the pendency of the said suit, I filed a petition for alimony pendente lite, and that on the day of , 19 , the said C. B. duly filed his 30 Alimony and Maintenance. In undefended cause. In defended cause. Varying order. Enforcing order. Form of order. D.M.C. 466 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. answer thereto on oath, and thereby admitted that he was possessed of an annual income of £ 3. That on the day of , 19 , your Lord- ship (or this honourable Court) decreed that the said C . B . should pay to me the sum of £ by monthly instalments as and for alimony pendente life. 4. That on the said day of , at the time of the pronouncing of the said decree of judicial separation in the 1st paragraph above mentioned, your Lordship (or this honourable Court) further decreed that the said C. B. should pay to me the sum of £ by monthly instalments as and for permanent alimony. 5. That I am informed and believe that since the pro- nouncing of the said last-mentioned decree for permanent alimony, the income of the said C. B. has been largely increased, particularly since the death of E. F., an uncle to the said C. B., who died on the day of ,19 , leaving a will under which the said C. B. became entitled to a legacy amounting to £ 6. That the said will was duly proved in the principal registry of the Probate, Divorce, and Admiralty Division of her Majesty’s High Court of Justice (or in the principal Probate Registry of this honourable Court), and that I am informed and believe that the said C. B. has since received and still holds and enjoys the said legacy and the annual income derived therefrom. Your petitioner therefore humbly prays — That your Lordship will be pleased to decree to her such an increased sum of money for permanent alimony as to your Lordship may seem meet, and that your petitioner may have such further and other relief in the premises as is meet. ALIMONY AND MAINTENANCE. 467 Or, That your Lordship will be pleased to decree her — 1. Such further amount of permanent alimony as may be meet. 2. Such further and other relief as is meet. (Signed) A. B. [As to 'permanent maintenance, see ante, pp. 161 — 168.] It is usually laid down that the word “ maintenance” is only applicable to suits for dissolution, but it may be respectfully doubted whether it is not equally applicable to any provision, either for a wife or husband, that is the creature of statute, as, for example, the provision ordered to be made for a husband out of the property of a guilty wife in suits for judicial separation under sect. 45 of the Mat. C. Act, 1857 (post, p. 468), or in suits for restitution of conjugal rights under sects. 2, 3 and 6 of the Mat. C. Act, 1884 (ante, pp. 84 — 86, and post, p. 473), as distin- guished from permanent alimony in a suit for judicial separation, the power to grant which is more or less inherited from the Ecclesiastical Courts. By rule 95, “Applications to the Court to exercise the authority given by sects. 32 and 45 of 20 & 21 Viet. c. 85, and by sect. 5 of the 22 & 23 Viet. c. 61, are to be ma,de in a separate petition, which must, unless by leave of the judge, be filed as soon as by the said statutes such applica- tions can be made, or within one month thereafter.” By sect. 32 of the Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), “ The Court may, if it shall think fit, on any such decree” ( i.e ., for dissolution of marriage ), “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 30 (2) Alimony and Maintenance. Permanent maintenance. Meaning of term. Applications for permanent maintenance must be made by petition. Powers of Court as to. 468 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. Ibid. Reduction of amount. Provision for husband out of property of guilty wife in suits for judicial separation. ability of the husband, and to the conduct of the parties, it shall deem reasonable, . . . and it goes on to give the Court power to order a proper deed to be prepared by one of the conveyancing counsel of the Chancery Division for the purpose of securing the same. The provisions of this section are extended by the Mat. C. Act, 1866 (29 & 30 Viet. o. 32), to meet the case of a husband who has no property on which the payment of a gross or annual sum can be secured, but nevertheless might be able to make a monthly or weekly payment to his wife during their joint lives. By sect. 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 support as the Court may think reasonable: Provided always, that if the hus- band 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 soj ordered to be paid, and again to revive the same order, wholly or in part, as to the Court may seem fit.” It would seem from the terms of the above section that though a husband may apply to reduce the amount of payments to be made under it, the wife cannot apply to have such payments increased. [ Proceedings under this section must he commenced hy ; petition .] By sect. 45 of the Matrimonial Causes Act, 1857 (20 & 21 Viet. c. 85), “In any case in which the Court shall pronounce a sentence of divorce or judicial separa- tion for adultery of the wife, if it shall be made appear to the Court that the wife is entitled to any property, either in possession or reversion, it shall be lawful for the Court, if it shall think proper, to order such settle- ment as it shall think reasonable to be made of such ALIMONY AND MAINTENANCE. 469 property or any part thereof, for the benefit of the inno- cent party, and of the children of the marriage, or either or any of them.” [22 & 23 Viet. c. 61 (Mat. C. Act, 1859), s. 5, the other section mentioned in this rule, gives the Court 'power to vary settlements in suits for nullity, see post, title “ Practice as to Variation of Settlements p. 480.] By rule 96, “In cases of application for maintenance under sect. 32 of the 20 & 21 Viet. c. 85, such petition may be filed as soon as a decree nisi has been pronounced, but not before.” [ This also applies to petitions under 29 & 30 Viet. c. 32, s. 1 , supra. The petition may be filed up to within one month after decree absolute, which is the time allowed for appeal against the decree, and even later by leave of a registrar. See Bradley v. Bradley (1878), 3 P. D. 47; 47 L. J. P. 53; 39 L. T. 203; K. v. K. (otherwise B.), (1910) P. 140. See also ante, pp. 158 — 160.] Form 93. Petition for Maintenance. [ Commencement as in Form 85.] 1. That on the day of , 19 , your Lord- ship (or this honourable Court) pronounced a decree nisi for the dissolution of the marriage of your petitioner with the said Timothy Trowse. [For contents of petition, see Forms 85 and 86.] Wherefore your petitioner humbly prays — That your Lordship will be pleased to order that the said Timothy Trowse shall, to the satisfaction of your Lordship, and in such manner as to your Lordship shall seem meet, secure to your petitioner by way of maintenance during the term of her natural Alimony and maintenance. Varying settlements in nullity suits. Petition, time for filing. Petition for maintenance, form of. 470 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. No affidavit in verification required. Service of petition. life, or for such other term as to your Lord- ship shall seem meet, such gross or annual sum of money as to your Lordship shall seem meet, and that your petitioner may have such further and other relief in the premises as is meet. Or, That your Lordship will be pleased to order her — 1. Such amount of permanent mainten- ance as to your Lordship is meet: 2 . That such maintenance may be secured to your petitioner in such manner as to your Lordship is meet: 3. Such further and other relief as is meet. (Signed) Charlotte Trowse. [// the petitioner had married again before the final order of maintenance , the title of the cause would have to be altered by describing her as “ Charlotte Trowse ( now the wife of A. 5.).”] It does not appear from the rules that any affidavit in verification of this petition is required, and it may be taken that such is the case. By rule 97, “ A certified copy of such petition, under seal of the Court, shall be personally served on the husband or wife (as the case may be), and on the person or persons who may have any legal or beneficial interest in the pro- perty in respect of which the application is made, unless the J udge Ordinary on motion shall direct any other mode of service, or dispense with service of the same on them or either of them.” [ Practice as to service generally, service abroad, and sub- stituted service, the same as citation, ante, pp. 301 — 319.] ALIMONY AND MAINTENANCE. 471 Where the husband has not appeared in the suit, he can enter an appearance to this petition; but if he has not appeared at all, it is most probable that an affidavit of service will be required by the registrar before proceeding to allotment. By rule 98, “ The husband or wife (as the case may be), and the other person or persons (if any) who are served with such petition, within fourteen days after service, may file his, her, or their answer on oath to the said peti- tion, and shall on the same day deliver a copy thereof to the opposite party, or to his solicitor.” [i Service the same as in case of alimony pendente life, see ante, p. 449. Service that is not personal is in every case regulated by rules 39 and 114, ante, p. 355.] By rule 99, “Any person served with the petition, not being a party to the principal cause, must enter an appear- ance before he or she can file an answer thereto.” And by rule 100, “ Within fourteen days from the filing the answer, the opposite party may file a reply thereto, and the same period shall be allowed for filing any further pleading by way of rejoinder.” By rule 101, “ Such pleadings, when completed, shall in the first instance be referred to one of the registrars, who shall investigate the averments therein contained, in the presence of the parties and their solicitors, and who for that purpose shall be at liberty to require the production of any documents referred to in such pleadings, or to call for any affidavits, and shall report in writing to the Court the result of his investigation, and any special circumstances to be taken into consideration with reference to the prayer of the petition.” And by rule 204, “ The registrar to whom pleadings are referred for investigation under rule 101 shall, if he thinks fit, be at liberty to require the attendance of the husband or wife for the purpose of being examined or cross- examined, and to take the oral evidence of witnesses in Alimony and Maintenance. Husband not appearing. Answer, time for filing. Persons not parties served with petition must appear before filing! answer. Subsequent pleadings. Allotting alimony by registrar. 472 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. Practice up to report of registrar. Report of registrar. Amount fixed by consent. Motion to confirm report of registrar. Order cannot be made before decree absolute, but inquiry may be held and report prepared. Allowance to wife guilty the same manner as on a reference for an allotment of alimony.” [ These two rules must be read together. The 'proceedings from this point on to the report of the registrar core the same as in alimony pendente lite, or per- manent alimony. See ante, pp. 456 — 461.] By rule 102, “ The report of the registrar shall be filed in the registry by the husband or wife on whose behalf the petition has been filed, who shall give notice thereof to the other parties heard by the registrar; and either of the parties, within fourteen days after such notice has been given, if the Judge Ordinary be then sitting to hear motions, otherwise on the first day appointed for motions after the expiration of fourteen days, may be heard by the Judge Ordinary on motion in objection to the registrar's report, or may apply on motion for a decree or order to confirm the same and to carry out the prayer of the petition.” \Rule 103 relates to the wife's costs. See post, title “ Practice as to Costs," p. 540.] The parties may fix the amount of maintenance by consent, as in alimony. (See ante, pp. 162, 460, 464.) The registrar’s report as to the amount of permanent maintenance must be confirmed on motion in open Court under the above rule. Objections to the report are heard on this motion. [. For practice, see post, title “ Practice as to Motions and Summonses," p. 511.] It has been decided by the Court of Appeal, that although a final order for maintenance cannot be made before decree absolute, the registrar need not wait until such decree has been pronounced to hear the petition and prepare his report. Waterhouse v. Waterhouse, (1893) P. 284; 62 L. J. P. 115; 69 L. T. 618. Where the Court orders the husband to make some pro- vision for a wife found guilty of adultery (ante, p. 164), ALIMONY AND MAINTENANCE. 473 it is usual to refer the matter to the registrar to fix the amount of such allowance, and the decree is not made absolute until the order of the Court is complied with. Alimony and Maintenance. of adultery, practice as to. [For the manner of enforcing an order for permanent maintenance , see post, title “ Enforcing Decrees and Orders p. 638.] Enforcing order for maintenance. Rules 214 and 215 were made to carry out the provisions Provision for as to alimony and maintenance of the Matrimonial Causes ^restitution Act, 1884 (47 & 48 Viet. c. 68), passed to amend the law ^ er 1 ^^ t ' C * as to restitution of conjugal rights, which confers special powers on the Court of making provision for a wife in these suits. [See ante, pp. 84 — 86.] By rule 214, “ All applications to the Court to exercise ibid. the authority given by sects. 2, 3 and 6 of 47 & 48 Viet, c. 68, are to be made in a petition, which may be filed as soon as by the said statutes such applications can be made, or at any time thereafter .” (Not before the decree is made or before the time has expired for compliance with such decree.) And by rule 215, “Rules 97 to 102, both inclusive, Ibid. and 195 and 204 (ante, pp. 470 — 472, and pp. 445, 471), shall, so far as the same are applicable, be observed in respect to applications by petition to exercise the authority given by the aforesaid sects. 2, 3 and 6 of 47 & 48 Viet, c. 68.” [Rules 216, 217 and 218 relate entirely to costs , see title “ Practice as to Costs ” post, p. 540.] FEES. £ Filing petition for alimony pendente lite . 0 Ibid, permanent alimony . . 0 Ibid, maintenance . . . . 0 Filing answers (alimony pendente lite, permanent alimony, maintenance), each 0 Fees. s. d. 2 6 2 6 2 6 2 6 474 PRACTICE IN MATRIMONIAL SUITS. Alimony and Maintenance. Allowed on taxation. Filing replies and subsequent pleadings (alimony pendente lite y permanent ali- mony, and maintenance), each . Reference to registrar (alimony pendente lite,, permanent alimony and mainten- ance, in the latter ease including his report) . . . . .10s. Order of registrar in alimony pendente lite and permanent alimony, each Filing report of registrar on permanent maintenance ..... [The following costs would probably be allowed on taxation:] Alimony pendente lite. Instructions for petition Drawing same ..... Attending filing ..... Personal service of petition at Forest Hill, and mileage ..... Attending respondent’s summons for fur- ther time to answer, when order made for fourteen days .... Perusing respondent’s answer to petition for alimony pendente lite . Attending registrar’s appointment to fix alimony ..... Copy and service of appointment on respondent ..... Attending appointment before registrar to fix alimony pendente lite y when appoint- ment adjourned, as no one attended for the respondent ..... The same, when order made fixing the alimony at £ a year Attending to draw upi order for alimony pendente lite ..... Copy and service of order on respondent . £ s. d. 0 2 6 per hour 0 5 0 0 2 6 0 6 8 10 0 0 6 8 0 10 0 0 6 8 0 6 8 0 6 8 0 4 0 0 6 8 0 13 4 0 6 8 0 3 6 ALIMONY AND MAINTENANCE. 475 Permanent Alimony and Maintenance. Alimony and „ Maintenance^ £ s. d. Instructions for petition .... 0 6 g Fees. Drawing and engrossing including copy to file 1 0 0 Attending petitioner on her signing peti- tion ...... 0 6 8 Attending filing petition in Divorce Hegis- try and bespeaking copy under seal for service on respondent .... 0 6 8 Attending for same .... 0 6 8 Personal service of petition on respondent at , and mileage .... 0 8 0 Perusing respondent's answer . 0 6 8 Attending obtaining appointment to fix permanent alimony .... 0 6 8 Notice of appointment, copy and service . 0 4 0 Attending appointment when amount of respondent’s income ascertained, but appointment adjourned for a week 0 13 4 Attending adjourned bearing before regis- trar when permanent alimony fixed 0 13 4 Attending drawing up prder . 0 6 8 Copy order for service on respondent 0 1 4 Service thereof at Peckham and mileage . 0 6 0 Drawing" costs and copies (folios 8) . 0 8 0 Attending filing ..... 0 6 8 Attending taxing ..... 0 6 8 Attending for order for payment . 0 6 8 Copy and service of order and mileage . 0 6 0 Term fee ...... 1 1 0 [And all fees out of pocket. For the costs i allowed on motion to confirm registrar's report as to maintenance, see title “ Practice as to Motions and Summonses ," p. 511. Also bills of costs extracted from Johnson on Costs, 2nd edition, post, pp. 542 — 568.] 476 PRACTICE IN MATRIMONIAL SUITS. PROTECTION ORDERS. Statutory pro- visions as to. Application for, must be supported by affidavit. Contents of such affidavit. Effect of rule 220 on allegations in application for protection order. Practice as to Protection Orders. ♦ [For the statutory provisions relating to protection orders and cases reported, see ante. Part 1., Chap. X., pp. 169 — 174.] By rule 124, “ Applications on the part of a wife de- serted by her husband for an order to protect her earnings and property, acquired since the commencement of such desertion, shall be made in writing to the J udge Ordinary in chambers, and supported by affidavit.” And by rule 197, “ In the affidavit in support of an application on the part of a wife deserted by her husband for an order to protect her earnings and property acquired since the commencement of such desertion, the applicant must state whether she has any knowledge of the residence of her husband, and if he is known to be residing within the jurisdiction of the Court, he must be served personally with a summons to show cause why such order should not be made.” Under the provisions of rule 220 (ante, p. 288), the husband’s residence and the domicile of the parties at the time of the marriage have to be inserted in the appli- cation. Of course, “an application” is not “a petition,” but an application of this description is in the nature of a petition. Buie 220 commences with the words “ In all proceedings ” which, if they stood alone, would clearly include an application for a protection order. But, on the other hand, the rule concludes with the words “at the time of the institution of the suit.” If, instead of concluding with the words “ of the suit,” the sentence had concluded with the words “ of such proceedings,” the meaning would have been clearer than it is as it stands at present. PROTECTION ORDERS. 477 But as far as protection orders are concerned, they have become almost extinct, in consequence partly, no doubt, of the passing of the “ Married Women’s Property Acts,” but principally owing to the passing of the Summary Jurisdiction (Married Women) Act, 1895; and a dis- cussion of the possible effect of this rule, and (for that matter) a knowledge of the practice with respect to them, is of small practical value. The following is suggested as a form of application : — Form 94. Application lor Protection Order. In the High Court of Justice, Probate, Divorce, and Admiralty Division. (Divorce.) The 17t,h day of August, 19 The application of Clara Cringleford, of 2088, Forest Gate, Stratford, in the administrative county of London, ehoweth — 1. That the applicant (then Clara Pockland, spinster) was on the 1st day of September, 1900, lawfully married to Cavendish Cringleford, chemist’s assistant (whose present address is unknown, but who was last heard of at Baltimore, in the United States of America), at the Church of St. Peter, Mancroft, in the city of Norwich, and that at the time of the said marriage the applicant and her said husband were both domiciled in England. 2 . That after her said marriage the applicant lived and cohabited with her said husband at divers places, and at 2088, Forest Gate aforesaid, and that there have been issue of the said marriage three children, the eldest of whom is now ten years old . 3 . That on the 1st day of June, 1906, the said Cavendish Cringleford left home, stating that he was going to Protection Orders. Seldom applied for. Application for, form of 478 PRACTICE IN MATRIMONIAL SUITS. Protection Orders. Ibid. Prayer. Canada to better himself, and has ever since de- serted the applicant, and though he has from time to time written to her, has never at any time sent her any money to assist in the support of herself and her children, and, though frequently requested to do so, has always refused to return home or to allow her to join him. 4. That the said Cavendish Cringleford has always, since his desertion of the applicant, refused to give her any address except at a post office, although she has frequently written and asked him to do so. 5. That the last letter received by the applicant from the said Cavendish Cringleford reached her on January 1st, 1911, and was headed, “ Post Office, Baltimore, U. S. A.,” that the applicant replied to the said letter the next day, addressing such reply to “ Post Office, Baltimore,” as aforesaid, and posted the same with her own hands at the General Post Office, in St. Martin’ s-le-Grand, but she has never since received any letter from or heard any news of the said Cavendish Cringleford since the said 1st day of January, 1911. 6. That since the desertion of her said husband the applicant has kept a registry office for servants at 2088, Forest Gate aforesaid, whereby she has earned a fair income and acquired the lease of the house and premises at 2088, Forest Gate aforesaid, together with a sum of £200 now deposited in her name in the Post Office Savings Bank. Wherefore the applicant humbly prays — That your Lordship will grant her an order for the protection of her earnings and pro- perty acquired since the said 1st day of June, 1906, from the said Cavendish Cringleford, and from all creditors and per- sons claiming under him. (Signed) Clara Cringleford. PROTECTION ORDERS. 479 The affidavit required by rules 124 and 197 must be sworn by the wife, and should verify the petition para- graph by paragraph; and if the applicant has any letters from her husband, such letters, or copies of them, should be brought into the Divorce Registry. The application and affidavit must be brought into the Divorce Registry and approved by the registrar. The order is drawn in ia book kept in the Divorce Registry, but the applicant can have a copy of such order under seal. Protection Orders. Affidavit in support, form of. Application and affidavit must be approved by registrar. Order, how drawn up. [ For the powers of the Court as to discharging a protection order, see ante, p. 172.] By rule 125, “ Applications for the discharge of any order made to protect the earnings and property of a wife are to be made to the Judge Ordinary by motion, and supported by affidavit. Notice of such motion, and copies of any affidavit or other document to be read or used in support thereof, must be personally served on the wife eight clear days before the motion is heard.” Dismissing order. FEES. Filing application . Filing affidavit Entering order Copy order under seal . £ s. d. 0 2 6 0 2 6 0 5 0 0 10 0 480 PRACTICE IN MATRIMONIAL SUITS. VARIATION OF SETTLE- MENTS. Powers of Court. Practice, rules as to. Proceedings must com- mence by petition. Petition for variation, form of. Practice as to Variation of Settlements. [ See generally, on this subject, ante, Part I., Chap. XI., pp. 175—191.] For the statutory powers of the Court, see ante, pp. 175, 176.] The yules regulating the practice as to variation of settlements, viz., 95 — 103, 204, 214 and 215, have all been given in externa ( ante , title “ Practice as to Alimony and Maintenance,” p. 446). By rule 95 ( see ante, p. 467), proceedings to vary settlements must be commenced by petition, for which the following form is suggested as a precedent: — Form 95. Petition for Variation of Settlement. In the High Court of J ustice, Probate, Divorce, and Admiralty Division. (Divorce.) A. B. v. C. B. The day of , 19 . The petition of A. B., the lawful wife of C. B., showeth — 1. That on the day of , 19 , your Lord- ship (or this honourable Court) pronounced a decree nisi for the dissolution of the marriage of your petitioner with the said C. B. [If the petition is filed after a decree of nullity of mar- riage, the above must be altered accordingly .] 2. That by an ante-nuptial (or post-nuptial) settlement bearing date the day of ,18 , a copy VARIATION OF SETTLEMENTS. 481 whereof is hereto annexed, it was witnessed that certain trustees therein named should stand pos- sessed of the sum of £6,000 five per cent. London and North Western Railway preference stock, and the sum of £10,000 consols, and £8,000 Victoria bonds, upon trust, during the joint lives of the petitioner and the respondent, to pay two-thirds of the interest, dividends, &c. to the petitioner or to such persons as she should direct for her separate use, and the remaining one-third of the interest, dividends, &c. to the respondent for his own use and benefit; and from and after the decease of either of them, to pay the whole of the interest, &c. to the survivor during his or her life ; and from or after the decease of the survivor upon trust, for all or any of the children of the said marriage, accord- ing to the joint appointment of the petitioner and respondent, or the appointment of the survivor, or in default of appointment, for all the children of the said marriage, who being a son or sons should attain twenty -one, or being a daughter or daughters should attain that age or be married with the con- sent of their parents or guardians, with an ultimate trust, on failure of children, for the petitioner, if she should survive the respondent, but if not, then for such persons as she should by will appoint; and in default of appointment, in trust for such persons as would be entitled to her personal estate if she had died intestate and had survived the respondent. [The deed of settlement need not he filed .] 3. That there are six children of the marriage, as set forth in paragraph 2 of the petition filed in this suit, to which your petitioner craves leave to refer. [Or else repeat so much of paragraph 2 of the petition for dissolution as relates to the issue of the marriage .] Variation of Settlements. Petition for variation, form of. D.M.C. 31 482 PRACTICE IN MATRIMONIAL SUITS. Variation of Settlements. Petition for variation, form of. No affidavit in support necessary. Petition some- times signed by solicitor. Petition, time for filing. Notice to respondent ■when filed before decree absolute. Service of petition. 4 . That all the said trust funds mentioned in the settle- ment were the sole property of the petitioner. 5. That the respondent has never given to nor settled upon the petitioner any property. Wherefore your petitioner humbly prays — That your Lordship will be pleased to decree that the said settlement may be varied by {here set out manner in which it is desired that the settlement should he naried), or in such other manner us to your Lordship may seem meet, and that your petitioner may have such further and other relief in the premises as is meet. Or, That your Lordship will be pleased to decree — 1 . That such settlement be varied in such manner as is meet. 2. Such other and further relief as is meet. (Signed) A. B. [The rules do not require this petition to he verified hy affidavit.'] The Court sometimes allows the petition to be signed by the solicitor. Ross v. Ross (1882), 7 P. D. 20; 51 L. J. P. 22 . The petition to vary may be filed and served any time after decree nisi, but not before {as in petitions for main- tenance, rule 96, see ante, p. 469), or within one month after decree absolute. [But when the petition is filed before decree absolute, the respondent should have notice that the motion to vary will be made after decree absolute. Lawrence v. Lawrence (1862), 3 S.&T. 207; 32 L. J. P. 124.] Buie 97 {see ante, p. 470) requires personal service; or substituted service by leave of the Court on the opposite VARIATION OF SETTLEMENTS. 483 party and on all persons having any legal or beneficial interest in the settlement. [For 'practice as to obtaining order for substituted service, see ante, “ Citations pp. 301 — 315.] It was held in Corrance v. Corrance and Lowe (Moore intervening) (1868), L. R. 1 P. & D. 495; 37 L. J. P. 44; 18 L. T. 535, that the trustee of a marriage settlement cannot he heard on a petition to vary, but he can be heard in opposition; but in Vivian v. Vivian , (1909) P. 57; 78 L. J. P. 36; 100 L. T. 169, that where the trustee having been made a party by the petitioner, was entitled to be heard. The guardian of minor children is the proper person to petition for variation, if petitioner be dead. The executor cannot do so unless also guardian: Smithe v. Smithe and Eoupell (1868), L. R. 1 P. & D. 587; Ling v. Ling and Croher (1865), 4 S. & T. 99; 34 L. J. P. 52; 13 L. T. 251. Service of petition dispensed with where respondent and trustee both uncertificated bankrupts, and notice of appli- cation to dispense had been served on the official receiver: Snelling v. Snelling (1890), 63 L. T. 263; also Gordon v. Gordon, (1905) P. 96; 76 L. J. P. 39; 92 L. T. 478. One trustee resident in England duly served with petition to vary. Co-trustee resident in Australia, Court refused to order substituted service on trustee resident in Australia, but dispensed with service on him altogether, on being satisfied that neither trustee had any beneficial interest in the property. Taylor v. Taylor (1892), 66 L. T. 267. By rule 98 {see ante, p. 471), the parties to the principal cause, or any other persons who have been served with the petition for variation, may file an answer thereto. [Where a husband filed his petition for variation after obtaining a decree nisi for dissolution, but before decree absolute, the Court of Appeal ordered the wife to file her answer within one month after decree absolute, and dis- missed an order of the Court below directing her to file her answer before the decree was made absolute. Constantinidi v. Constantinidi and Lance, (1904) P. 306; 73 L. J. P. 91; 91 L. T. 273; 20 T. L. R. 573. 31 (2) Variation of Settlements. Trustee, when heard. Guardian of minor children. Service of petition dis- pensed with. Trustee resident in Australia, service. Answer, time for filing. 484 PRACTICE IN MATRIMONIAL SUITS. Variation of Settlements. Proceedings in Chancery Division. The Court has no power until decree absolute to hold an inquiry upon a petition for variation of settlements. Clarke v. Clarke and Lindsay , (1911) P. 186 (0. A.); 105 L. T. 1. It is no answer to a petition to vary, that proceedings to obtain an administration of the trusts of the same settlement are pending in the Chancery Division. Marsh v. Marsh (1878), 47 L. J. P. 78.] Respondent not answer- ing; affidavit of service of petition necessary. Trustees and other persons served must appear before filing answer. Answer, service of. Reply, time for filing. Trustees, &c. filing answer out of time, not heard before registrar. Inquiry before registrar. Where a respondent has not entered an appearance at all, pr if, having' appeared, such respondent has not filed an answer to the petition for variation of settlements, an affidavit of service of the petition will be required, which will be more or less as in Form 15 (ante, p. 307). By rule 99 (see ante, p. 471), trustees or other persons served with the petition for variation, not being parties to the principal cause, must enter an appearance before filing an answer. But it is not necessary that each of such persons should appear separately. If they are all repre- sented by the same solicitor, he can enter one appearance for them all. A copy of the answer is delivered to the opposite party. (See rules 39 and 114, ante, p. 355.) By rule 100 (see ante, p. 471), fourteen days is allowed for filing a reply. Trustees and others not parties to the principal suit may appear and answer, although they may be out of time, without leave. They are allowed to be present at the inquiry before the registrar, that they may hear what it is proposed {to do; but they are not allowed to be heard before the motion to confirm comes on in open Court. By rule 101 (see ante, p. 471), the matter is referred to the registrar, who investigates the whole matter, and on such inquiry the registrar can call for documents or affi- davits; and by rule 204 (see ante, p. 471), he can also require the attendance of the husband or wife for exami- nation and cross-examination, and take the oral evidence of other witnesses. VARIATION OF SETTLEMENTS. 485 If the registrar requires deeds to be produced, it is not necessary to leave the originals in the Divorce Registry. It will suffice to leave copies, which need not be filed . [The fact of a wife being an adulteress does not bar her right to cross-examine her husband as to his means. Drif- field v. Driffield (1891), 65 L. T. 795.] Variation of Settlements. Deeds produced ; originals need not be left in the registry. The party filing the petition for variation obtains the appointment for hearing before the registrar in exactly the same way as in alimony, and pays the same fee of 10s. on application. (See ante, p. 458.) If the respondent is not represented at the appointment before the registrar, an affidavit showing that he was duly served with notice of such appointment will be required. The proceedings before the registrar are conducted in the same manner as in alimony, and the practice as to the attendance- of counsel and solicitors is the same. (See ante, pp. 458 — 462.) By rule 102, p. 472, “ The report of the registrar shall be filed in the registry by the husband or wife on whose behalf the petition has been filed, who shall give notice thereof to the other parties heard by the registrar; and either of the parties within fourteen days after such notice has been given, if the judge . . . be then sitting to hear motions, otherwise on the first day appointed for motions after the expiration of fourteen days, may be heard by the judge . . . . on motion in objection to the registrar’s report, or may apply on motion for a decree or order to confirm the same and to carry out the prayer of the petition.” [The omission to make the motion within the fourteen days required by rule 102 is not fatal: Farrington v. Farrington and Schooles (1886), 11 P. D. 84; 55 L. J. P. 69. The trustee can be heard on this motion on objection to the report, though not before the registrar. Corrance v. Cor- rance and Lowe (Moore intervening) (1868), Jj. R. 1 P. & D. 495; 37 L. J. P. 44; 18 L. T. 535. Rule 103 relates to the costs of the wife; see post, title “ Practice as to Costs," p. 540. Appointment before registrar, how obtained. Respondent not appearing before registrar, affidavit of service of notice required. Investigation before registrar. Report of registrar. Costs of wife. 486 PRACTICE IN MATRIMONIAL SUITS. Variation of Settlements. Motion to confirm report of registrar. Order for variation. Service of order. For the pradtice as to the motion to confirm the report of the registrar, see post, title “ Practice as to Motions and Summonses ” p. 511.] When the motion comes on before the Court the judge hears the arguments for and against the report, which are often of great length. Not unfrequently the report is referred back to the registrar for further consideration. When the report is finally confirmed by the Court, it is sent back to the registrar to draw up an order carrying out the directions of the Court. The parties and trustees and the parties affected by the order are usually served with a certified office copy. Fees. Costs. Amending order. Money ordered to be paid for benefit of child. Rules 214, 215. FEES. Filing petition ..... Reference to registrar including report, per hour ...... Filing report . . . . . £ s. d. 0 2 6 0 10 0 0 2 6 [ The costs allowed on taxation are about the same as in alimony ; and see post, pp. 540 — 603. As to amending order for varying a settlement, see Caven- dish v. Cavendish and Rochefoucauld (1868), 38 L. J. P. 13; 19 L. T. 497; Gladstone v. Gladstone (1876), 1 P. D. 442; 45 L. J. P. 82; 35 L. T. 380. And where money has been ordered to be paid to a parent for the benefit of a child, such order should contain the words “ as long as it remains in his (or her) custody”: Sykes v. Sykes and Smith (1870), L. R. 2 P. & D. 163; 39 L. J. P. 52; 23 L. T. 239; see also Pocock v. Pocock, 18 L. T. 338. Rules 214 and 215, see ante, p. 473, relate to applications in suits for restitution of conjugal rights, under sects. 2, 3, 4 and 5 of the Mat. C. Act, 1884, ante, pp. 84 and 85.] DECREE AND INTERVENTION. 487 Practice as to Decree and Intervention. [See on this subject generally, ante, Part I., Chap. XII., pp. 192 to 203. For statutory powers of the Court as to, ante, pp. 192, 193, 195, 199 and 200.] Decrees for dissolution of marriage and nullity of mar- riage are decrees nisi in the first instance (see ante, pp. 194, 195), and made absolute unless cause is success- fully shown against them at the end of six months . After these decrees have been made absolute, one month is allowed in which to appeal against them. Decrees of judicial separation, restitution of conjugal rights, and jactitation of marriage, are final decrees, and take effect immediately from the day on which they are dated. As decrees are all drawn up in the Divorce Registry, and neither the parties nor their counsel or solicitors have any hand either in drafting or settling them, it seems scarcely worth while to burden the text of this book with the forms of such decrees, but the following notes of their contents may be useful. Every decree is headed in the cause, and dated imme- diately after the heading. It then goes on to recite the fact that, having taken the evidence of the parties them- selves (or, in undefended cases ^ “of the petitioner”), and the witnesses produced on their (or “his” or “her”) behalf, and heard counsel, the judge is satisfied that the charges contained in the petition have been proved. [After commencing as above , decree continue as follows ;] 1. A decree nisi for dissolution decrees that the mar- riage be dissolved ( setting out the grounds on which such DECREE AND INTER- VENTION. Generally. Statutory powers of Court as to. Decrees nisi. Dissolution of marriage. Nullity. Final decrees ; judicial separation ; restitution of conjugal rights ; jactitation of marriage. All decrees drawn up in Divorce Registry. Decree, formal commence- ment of. Dissolution, decree nisi for; contents of. 488 PRACTICE IN MATRIMONIAL SUITS. Decree and Intervention. Dissolution, decree nisi ; contents of. Nullity, decree nisi for ; contents of. Judicial separation, final decree for ; contents of. dissolution is deemed ), 11 unless sufficient cause be shown to the Court why this decree should not be made absolute within six months from the date thereof.” The co-respon- dent (if any) is then formally condemSned in the costs “ incurred and to be incurred on behalf of the petitioner.” If the custody of the children of the marriage has been asked for and granted at the hearing, “it is ordered that such children do remain in the custody of the petitioner until f urther order of the Court, but it is directed that such children be not removed out of the jurisdiction of the Court without its sanction.” If the petitioner be the hus- band, he is further ordered to pay the respondent’s taxed costs, up to the sum ordered to be secured to cover the wife’s costs of the hearing. If, on the other hand, the petitioner is the wife, the husband will, of course, be formally condemned in her full costs. 2. A decree nisi for nullity of marriage decrees “that the marriage in fact had and solemnized on the day of , 19 , at , in the county of , between A. B. (otherwise C.), the petitioner, and J. B., the respon- dent, be pronounced and declared to have been and to be absolutely null and void to all intents and purposes in the law whatsoever by reason of ( setting forth the grounds on which such marriage is declared null and void), and that the said A. B. (otherwise C.) be pronounced to have been and to be free from all bond of marriage with the said J. B., unless sufficient cause be shown to the Court why this decree should not be made absolute within six months from this date:” and the decree concludes by condemning the respondent in the costs “ incurred and to be incurred ” on behalf of the petitioner. 3. A decree of judicial separation recites that the judge “ by his final decree pronounced and decreed a judicial separation between A. B., the petitioner, and C. B., the respondent, by reason of ( setting forth the grounds of such decree), and condemned the said respondent in the costs incurred and to be incurred on behalf of the said peti- DECREE AND INTERVENTION. 489 tioner.” If the Court has not given the petitioner the whole of the costs by reason of some of the charges being frivolous or for any other reason, the decree will continue “except such costs,” setting forth clearly what portion of the costs has been disallowed. 4. A decree of restitution of conjugal rights recites “that the judge by his final decree pronounced that the petitioner and respondent were and are lawful husband and wife, and ordered that the said respondent do within fourteen days from the service of this order on him return home to the petitioner, and render her conjugal rights (or vice versa), and (if a husband ) within a like time file a certificate that he has so done, and condemned the said respondent in the costs incurred and to be incurred on behalf of the said petitioner.” 5. In suits for jactitation of marriage, the Court decrees perpetual silence against the respondent, and condemns in his costs. In other words, the respondent is forbidden ever again to allege that he (or she) is married to the petitioner. Decrees nisi are signed by the registrar. Office copies can be obtained, but the cost of them will not be allowed on taxation, as, being inchoate documents, it is not usually a matter of importance to the petitioner whether he or she possesses one or not. Where a decree nisi contains collateral matter, such as an order for the custody of children, paying damages into Court, &e., a plain copy of so much of it as contains such collateral matter, signed by the judge, must be served on the respondent, and, if necessary, on the co-respondent (if any) also. Otherwise decrees nisi are not served on the opposite party. In final decrees for judicial separation also, if they contain an order for the custody of children, a plain copy of such order must also be served on the opposite party whenever the children have not been given up to the peti- tioner, but not otherwise. Decree and Intervention. Restitution of conjugal rights, final decree for ; form of. Jactitation of marriage, final decree for ; contents of. Decrees nisi signed by- registrar. Decrees nisi, when service of required. Final decrees, when service of required. 490 PRACTICE IN MATRIMONIAL SUITS. Decree and Intervention. Documents handed in at hearing on trial ; Custody of, in defended causes. Ibid, in undefended causes. When handed out; copies left in registry. Making decree absolute. Practice as to. The fee for a plain copy for service as above is 5s. Documents handed in at the hearing or trial are retained in the registry until the decree is made absolute, unless the Court at the hearing makes some special order with respect to them, which is not unfrequently done on the application of counsel when the circumstances warrant it. After decree absolute they are given out to the parties who handed them in. But in every defended cause the parties or their solicitors must attend at the Divorce Regis- try, or if one party, or his or her solicitor, only attend, a letter of consent from the other side must be produced. In undefended causes they are given out on a proper receipt for them being left in the registry. In every case such copies must be left in the Divorce Registry as the registrar shall think fit. By rule 80, “ All applications to make absolute a decree nisi for dissolution of a marriage must be made to the Court by motion. In support of such applications it must be shown by affidavit filed with the case for motion that search has been made in the proper books at the registry up to within two days of the affidavit being filed, and that at such time no person had obtained leave to intervene in the cause, and that no appearance had been entered nor any affidavits filed on behalf of any person wishing to show cause against the decree nisi being made absolute; and in case leave to intervene had been obtained, or appearance entered, or affidavits filed on behalf of any such person, it must be shown by affidavit what proceed- ings, if any, had been taken thereon, but it shall not be necessary to file a copy of the decree nisi.” By rule 194, “In case application by motion to make absolute a decree nisi for the dissolution of a marriage should from any cause be deferred beyond six days from the time when the affidavit required by rule 80 is filed with the case for motion, it must be shown by further affidavit that search has been made in the proper books up DECREE AND INTERVENTION. 491 to within six clear days of the motion for decree absolute being heard, and that at such time no person had obtained leave to intervene, and that no appearance had been entered nor any affidavits filed on behalf of any person wishing to show cause against the decree nisi being made absolute; and in case leave to intervene had been obtained, or appearance entered or affidavits filed on behalf of any such person, it must also be shown by such further affi- davit what proceedings, if any, have been taken thereon.” And by rule 207, “ Application to make absolute a decree nisi for dissolution or nullity of a marriage need not hereafter be made to the Court by motion as directed by rules 80 and 194, but it shall be a sufficient compliance with the said rules to file in the registry, with the affidavit or affidavits therein required, a notice in writing setting forth that application is made for such decree absolute, which will thereupon be pronounced in open Court at a time appointed for that purpose.” [See, on the subject of making decrees absolute, ante, pp. 194 , 195 .] Although by rule 207 it is no longer necessary to move to make a decree nisi absolute, the provisions of rules 80 and 194 as to making searches and filing affidavits must still be complied with . The effect of rule 207 has been to remove a very un- necessary tax upon litigants who up to the time that rule came into force, which was about November, 1880, had in every case to brief counsel merely to stand up and ask that the decree be made absolute. The decree is still made absolute in open Court, though without any motion. On every motion day the registrar reads over a list of causes in which the proper time has elapsed, and the requirements of rules 80 and 194 have been complied with. If any party or other person objects to the decree being made absolute, counsel is instructed Decree and Intervention. Making decree absolute. Present practice as to. Ibid. 492 PRACTICE IN MATRIMONIAL SUITS. Decree and Intervention. Making decree absolute, present practice as to. Custody of pleadings and other documents. Office copies, when certified. Sealed copy. Intervention by the King’s Proctor and other interveners. to get up and oppose it when the name of the cause is called. ; If the application is not made within twelve months from the date of the decree nisi, an affidavit must be filed explaining the delay — want of means may be a sufficient excuse. < By rule 118, “ The registrars of the principal registry of the Court of Probate are to have the custody of all plead- ings and other documents now or hereafter to be brought in or filed, and of all entries of orders and decrees made in any matter or suit depending in the Court for divorce and matrimonial causes; and all rules and orders, and fees payable in respect of searches for and inspection or copies of and extracts from and attendance with hooks and docu- ments in the registry of the Court of Probate, shall extend to such pleadings and other documents brought in or filed, and all entries of orders and decrees made in the Court for divorce and matrimonial causes, save that the length of copies and extracts shall in all cases be computed at the rate of seventy-two words per folio.” By rule 119, “ Office copies or extracts furnished from the registry of the Court of Probate will not be collated with the originals from which the same are copied, unless specially required . Every copy so required to be examined shall be certified under the hand of one of the principal registrars of the Court of Probate to be an examined copy.” And by rule 120, “ The seal of the Court will not be affixed to any copy which is not certified to be an examined copy.” Intervention is of two kinds — by the King’s Proctor, or by one of the public. (See ante, pp. 195 — 203.) Usually the King’s Proctor intervenes on information privately communicated, but sometimes he takes action in consequence of papers in a cause being laid before him by order of the Court. (See ante, p. 200.) By rule 23, “ Application for leave to intervene in any Application to intervene. DECREE AND INTERVENTION. 493 cause must be made to the iudge by motion, supported by Decree and , ... Intervention. affidavit. [No one who is a party to the suit can obtain leave to Party cannot intervene. Intervention intervene: Stoate v. Stoate (1861), 1 2 S. & T. 384; 30 J- P. 173; 5 L. T. 138. Where a friend of the co-respondent fri^olousT attempted to intervene, but did not bring forward a single costs, fact of importance to the notice of the Court on affidavit, the Court dismissed the application and condemned him in costs. Forster v. Forster and Berridge (Graham interven- ing) (1863),' 3 S. & T. 151; 32 L. J. P. 206; 9L. T. 148.] And by rule 24, “ Every party intervening must join Intervener: in the proceeding's at the stage in which he finds them, intervention, unless it is otherwise ordered by the judge.” By rule 202 (made April 17, 1877), “ When the Queen’s King’s {now King's ) Proctor desires to show cause against ^tervene^ making absolute a decree nisi for dissolution or nullity of without leave, marriage, he shall enter an appearance in the cause in Plea of ‘ which such decree nisi has been pronounced, and shall, within fourteen days after entering appearance, file his plea in the registry, setting forth the grounds upon which he desires to show cause as aforesaid, and on the day he files his plea in the registry shall deliver a copy thereof to the person in whose favour such decree has been pro- nounced, or to his or her solicitor, and all subsequent pleadings and proceedings in respect to such plea shall be filed and carried on in the same manner as directed by the existing Rules and Regulations Nos. 68 and 69, in regard to the plea of the Queen’s {now King's) Proctor filed after obtaining leave to intervene in a cause, and the existing Rules and Regulations from Nos. 70 to 76, both inclusive, shall no longer be applicable to the Queen’s {now King's) Proctor on his showing cause as aforesaid, save so far as regards any proceedings already commenced in pursuance of the said Rules and Regulations.” The above rule was promulgated to take the place of rule 68, in order to prevent the necessity of the King’s 494 PRACTICE IN MATRIMONIAL SUITS. Decree and Intervention. Proctor having to obtain leave before intervening, tbe rest of rule 68 is repeated in rule 202. All [For 'practice as to entering appearance, see ante, pp. 337 —341.] Subsequent pleadings. 6 1 Other inter- veners” must still obtain leave ; and must first enter appearance. May have to give security for costs. Affidavits, filing of. Service of. Answer, time for filing. And by rule 69, “ All subsequent pleadings and pro- ceedings in respect to tbe Queen’s ( now King's) Proctor’s intervention in a cause shall be filed and carried on in the same manner as before directed in respect of the pleadings and proceedings of the original parties to the cause.” [For practice, see ante, pp. 341 — 388.] Although rules 70 — 76 are by rule 202 made no longer applicable to the King’s Proctor, they are applicable to other interveners, all of whom have still to obtain leave before intervening. By rule 70, “ Any person wishing to show cause against making absolute a decree nisi for dissolution of marriage shall enter an appearance in the cause in which such decree nisi has been pronounced.” [For practice, see ante, pp. 337 — 341.] Where a person other than the King’s Proctor inter- venes against a decree being made absolute, the party who has obtained the decree may apply that such intervener be ordered to give security of costs pending the inquiry. By rule 71, “Every such person shall at the time of entering an appearance, or within four days thereafter, file affidavits setting forth the facts on which he relies.” By rule 72, “ Upon the same day on which such person files his affidavits he shall deliver a copy of the same to the party in the cause in whose favour the decree nisi has been pronounced.” By rule 73, “ The party in the cause in whose favour the decree nisi has been pronounced may, within eight days after delivery of the affidavits, file affidavits in answer, and shall, upon the day such affidavits are filed, deliver DECREE AND INTERVENTION. 495 a copy thereof to the person showing 1 cause against the decree being made absolute.” By rule 74, “ The person showing cause against the decree nisi being made absolute may, within eight days, file affidavits in reply, and shall upon the same day deliver copies thereof to the party supporting the decree nisi.” By rule 75, “ No affidavits are to be filed in rejoinder to the affidavits in reply without permission of the judge or of one of the registrars in his absence.” {Now before a registrar , ante, p. 284.] By rule 76, “ The questions raised on such affidavits shall be argued in such manner and at such time as the judge may on application by motion direct; and if he thinks fit to direct any controverted questions of fact to be tried by a jury, the same shall be settled and tried in the same manner and subject to the same rules as any other issue tried in this Court.” Form 96. King’s Proctor’s Plea. In the High Court of Justice, Probate, Divorce, and Admiralty Division. (Divorce.) Between A. B., petitioner, and C . D . , respondent . King’s Proctor showing cause. Plea of the King’s Proctor. 1 . That material facts hereinafter mentioned have not been brought to the knowledge of the Court. {Here follow the King's Proctor's allegations in numbered paragraphs . ] The King’s Proctor therefore prays the Court to deal with the cause by reversing the decree nisi and Decree and Intervention, Reply, time for filing. Subsequent pleading. Hearing of issues raised on affidavit. Bang’s Proctor’s plea, form of. 496 PRACTICE IN MATRIMONIAL SUITS. Decree and Intervention. Ibid. Answer to King’s Proctor’s plea, form of. Setting down cause, hearing, &c. Issues tried by jury. dismissing the petition, and to make such order as to costs as to the Court may seem meet. The concluding paragraph of the above form was sug- gested by the late Lord Harmon . [As to pleading various allegations in the same plea, see Crawford v. Crawford and Dilke (Queen’s Proctor interven- ing) (1886), 11 P. D. 150; 55 L. J. P. 42; 55 L. T. 304; Dering v. Dering and Blakeley (Queen’s Proctor and others intervening) (1868), L. R. 1 P. & D. 531; 37 L. J. P. 52; 19 L. T. 48.] Form 97. Answer to King’s Proctor s Plea. [Heading as in Form 96.] The petitioner A. B., by B. C. T., his solicitor, in answer to the plea of the King’s Proctor filed in this cause, saith : — 1. That he denies that material facts have not been brought to the knowledge of the Court as alleged in the said plea. 2. That he denies (each of the King's Proctor's allega- tions categorically one by one). Or, “ That he denies each and every one of the allega- tions contained in the said plea.” The practice of denying each of the allegations, sepa- rately one by one, is strongly recommended to pleaders, as being very little more trouble, less slovenly, and in every way more satisfactory than a general denial. [ The King's Proctor obtains the registrar's certificate and sets the cause down for hearing , and the cause is heard or tried as in suits for dissolution. See ante, pp. 368 — 388.] If it is desired that the issues should 'be tried by a jury, application must be made on summons. DECREE AND INTERVENTION. 497 If no answer is filed, the King’s Proctor moves the Court that the petition he dismissed and the decree rescinded. But he must satisfy the Court on affidavit that he has searched and found that no answer has been made. Decree and Intervention. No answer filed, petition dismissed, and decree \_See post, title “ Practice as to Motions and Summonses,” rescinded. pp. 511, 524. Proctor The King’s Proctor is bound to give particulars ( for mU8 t gi ve practice , see ante, pp. 361 — 367) of his charges in the same particulars, manner as any ordinary litigant: Jessop v. Jessop (1861), 2 S. & T. 301; 30 L. J. P. 193; 4 L. T. 308; Barnes v. Barnes and Grim, wade (Queen’s Proctor intervening) (1867), L. R. 1 P. & D. 505; 37 L. J. P. 4; 17 L. T. 268; see also Gladstone v. Gladstone (1875), L. R. 3 P. & D. 260; 44 L. J. P. 46; 32 L. T. 404; Pierce v. Pierce (Queen’s Proctor showing cause) (1892), 66 L. T. 861.] The King’s Proctor is now condemned in costs when- ibid. ever the Court deems that his intervention was uncalled ^° n C Qg^ ned for. (Mat. C. Act, 1878 (41 Viet. o. 19), ss. 1, 2.) [See p. 246 and cases there quoted on this question. Where the Queen’s Proctor applied for leave to amend Ibid. certain dates, he was allowed to do so on payment of costs amending of amendment: Tomkins v. Tomkins (Queen’s Proctor inter- p vening) (1872), 20 W. R. 497.] When the intervention is successful the petition is dis- missed and the decree rescinded. The order rescinding the decree is entirely drawn up in the Divorce Registry and signed by a registrar. [When a decree nisi is rescinded, that part of it condemn- ing the co-respondent in costs falls with it: Hyman v. Hyman and Goldman (King’s Proctor showing cause), (1904) P. 403; 73 L. J. P. 106; 91 L. T. 361; also Quartermaine v. Quartermaine and Glenister, (1911) P. 180; see also Heckler v. Heckler and Bennett (1889), 58 L. J. P. 27. Fees as in “ Dissolution of Marriage ante, pp. 316, 336, 340, 360, 366 and 367. See also post, title “ Practice as to Costs” pp. 540 — 603.] Intervention successful ; petition dismissed ; decree rescinded. Order rescinding decree, form of. Fees. Costs. D.M.C. 32 498 PRACTICE IN MATRIMONIAL SUITS. LEGITI- MACY DECLARA- TION ACT, 1858. Petition must be supported by affidavit. Attorney- General must be made respondent. Citing parties to see pro- ceedings. All the D. C. Rules as far as possible applicable to these proceedings. Greek Marriages Act, 1884. Provisions of. Practice under the Legitimacy Declaration Act, 1858. [. For the Act itself , and the cases decided on it, see Part I., Chap. XIII., ante, pp. 204 — 211.] Every petition under this Act must be verified by affi- davit, which must deny collusion. (Sect. 3, ante, p. 205.) In every case the Attorney-General must be made a respondent. (Sect. 6, ibid.) By sect. 7 (ante, p. 206), application may be made to the Court to cite such persons as may be thought necessary . By rule 174, “ The above rules and regulations, so far as the same may be applicable, shall extend to applica- tions and proceedings under the Legitimacy Declaration Act, 1858.” The effect of this rule is that the practice with respect to a suit under the Legitimacy Declaration Act is, with the few necessary exceptions dealt with in the following pages, the same as in an ordinary suit for dissolution. The Greek Marriages Act, 1884 (47 & 48 Viet. c. 20) (post, Appendix B.), which was passed to establish the validity of certain marriages that had taken place in certain Greek Catholic chapels at Finsbury Circus and London Wall, by sect. 1 enables any party to such mar- riage, or any child or grandchild of such party, or any person interested in the validity of such marriage, to apply to the Divorce Division for a decree declaring that such marriage was a valid marriage. LEGITIMACY DECLARATION ACT, 1858. 499 This statute embodies the Legitimacy Declaration Act, and applies its provisions to the above declarations, and the practice under the two> statutes is identical. The Greek Marriages Act, 1884. By rule 213, “ In pursuance of the provisions of the Act of Parliament 47 & 48 Viet. c. 20, s. 1, "whereby it was enacted that any petition to the Probate and Matrimonial Division of her Majesty’s High Court of J ustice under the said Act should be accompanied by such affidavit verify- ing the same as the said Court might from time to time direct: “ Now, I, the Right Honourable Sir James Hannen, Knight, the President of the said Division, do hereby direct that the .affidavit verifying a petition under the said Act shall be in the form and to the effect required by rule 2 of the rules and regulations for her Majesty’s Court for Divorce and Matrimonial Causes, bearing date 26th December, 1865. “ (Signed) JAMES HANNEN. “Dated 6th August, 1884.” This rule was rendered necessary by the fact that whereas the Legitimacy Declaration Act, 1858, by sect. 3 (ante, p. 205) specially provides that the affidavit verify- ing the petition shall deny collusion, the Greek Marriages Act, 1884, merely says that the petition shall be supported by an affidavit, but is silent as to denying collusion. Copies of the petition and affidavit are delivered to the Attorney -General, and after a month has elapsed they can be filed in the Divorce Registry. It is usual, and indeed only common sense, to give the Attorney-General notice that the petition has been filed, although it is not obliga- tory to do so. The Attorney-General then enters an appearance, and files his answer within the times already shown. (Ante, pp. 337 — 353.) 32 (2) Legitimacy Declaration Act, 1858. Practice identical with legitimacy declaration. Affidavit in support of Greek Mar- riages Act. Ibid. Legitimacy Declaration Act. Copy of peti- tion served on Attorney- General. Time for filing. Appearance and answer by Attorney - General. 500 Legitimacy Declaration Act, 1858. Specimen of pleadings iu suit for declaration of legitimacy. New rules, 1904, 1905. PRACTICE IN MATRIMONIAL SUITS. The following is taken from the petition and answers in a ease under the Legitimacy Declaration Act, 1858, heard about 1860. Had it been heard at the present day, it wiould have been headed thus: — Specimen Form 98. Petition of, and Answers in Suit for Declaration of Legitimacy. In the High Court of Justice, Probate, Divorce, and Admiralty Division. (Divorce.) To the Fight Honourable the President of the said Division. The day of , 19 . The petition of W. P. R. S. of , and A. J. S. of , showeth : — [ Apparently rules 219 and 220, ante, pp. 287, 288, can have no application to petitions under the Legitimacy Declaration Act because , though they begin with the words, “ In all proceedings before the Court for divorce and matrimonial causes /’ y&f it is clear from the context that they were not intended to apply to these suits. But if one of the parties to a marriage were to file a petition under the Greek Mar- riages Act, it is submitted it would be necessary that the description and address of the husband and the domicile of the parties at the time of the marriage should be stated somewhere in the petition . ] 1. That the petitioners are both natural-born subjects of her Majesty; that W. P. R. S. is the son and heir, and A. J. S. a grandchild of W. S., late of R. county of A. in N. B., but who died at N. Y. in A., whilst living also a natural-born British sub- ject, and that the petitioners are both domiciled in E. 2. That W. S., the father of the elder petitioner, was the son of J. S. of R. and his wife J. S. formerly LEGITIMACY DECLARATION ACT, 1858. 501 R., that J. S. was the owner in fee of the estate Legitimacy • Declaration called R. and other freehold estates in A., that he Act, 1858 . died in 1770 aged eighty, leaving the said W. S. j^ d his only son and fwo daughters — M. married to J. P. of F. and A. who died unmarried. 3. That W. S., who was born and resided in S., left! that country i cmimo revertendi, and went to V. about the yeajr 1770 for temporary trading pur- poses; that in consequence of political disturbances which ensued in the N. A. province® from 1774 to 1783 his return home was delayed; that in 1783 he went to N. Y. to establish certain claims to com- pensation under the treaty of peace as a British subject who by reason of his loyalty to the B. Crown had suffered losses, and also to wind up his V. affairs; that he always intended to leave N. Y. and return to S . for life as soon as his compensation claim should be settled, but that, in fact, such claims were not settled till 1802. 4. That the said W. S. died at N. Y. on the 13th of November, 1798, aged fifty-one, being then a B. subject, and seised of real estate in S., which had descended to him from his father, and of 1 other real estate which he had acquired. 5. That the said W. S., at the end of the year 1785, intermarried with R. K., who soon after died, and by whom he had an only child, a daughter born in 1786. 6. That the said W. S. whilst residing in the State of N. Y., was in the year 1790, being then a widower, lawfully married to A. W., spinster, that from and after their said marriage the said W. S. and the said A. W., then S., lived and cohabited together as lawful husband and wife, until the death of the said W . S . ; that during such time they owned and acknowledged each other to be husband and wife, and as such were accounted, &c. amongst their PRACTICE IN MATRIMONIAL SUITS. 502 Legitimacy Declaration Act, 1858. Specimen of pleadings in suit for declaration of legitimacy. neighbours, friends, acquaintance, and others, and {that such marriage was an open and notorious fact. 7. That there was issue of such marriage one daughter, J. R. S., born in the year 1792, and one son, W. P. R. S., the petitioner, born in 1794. 8. That the said W. P. R. S., the petitioner, in the year 1855, brought an action for the recovery of some land at W. in the State of N. Y., of which his father was seised at the time of his death, which action was tried in the State of N. Y. in February, 1855, and that by the verdict and judgment thereon obtained in that action the validity of the said marriage, and consequent legitimacy of the peti- tioner were established in the State of N. Y., where it was contracted. 9. That W. P. R. S., the petitioner, would have suc- ceeded long since in establishing in G. B. the validity of the said marriage, but for the state of ignorance in which he was purposely kept as to the said marriage and other family matters by various members of his family who were interested in denying his legitimacy, some of whom had the sole care and charge of him during his youth, that he had specially been prevented, &c., by the conduct of R. P., J. P., W. P., hereinafter mentioned, and one H. C., since deceased. 10. That in case of the intestacy of the said W. S. and the illegitimacy of his children, his next of kin at; the time of his death, and the persons entitled in distribution to his personal estate, would have been his nephews and nieces, R. P., J. P., and W. P., and J . and E . P . , spinsters ; but that their claims to any share of his personal estate in distribution were and are barred by his will and codicils, proved by his executors in A. at the time and afterwards proved by the said W. P. R. S. in this country. 11. That in case of the illegitimacy of the children of LEGITIMACY DECLARATION ACT, 1858. 503 the said W. S., his heir-at-law would have been his nephew, R. P., the eldest son of his aforesaid sister M., wife of J. P., of T.; that the said R. P. died about the year 1838, leaving J. S. P. his eldest son and heir-at-law; that the said J. S. P. died about 1844, and that R. S. P., of T. and H., is his eldest son and present heir-at-law. 12. That the said W. P., a Writer to the Signet in E., and who was the guardian of W. P. R. S., the petitioner, is at present in possession of the afore- said freehold ©states in A., or some part thereof, of which the said W. S. died seised. 13. That the said W. P. is the only surviving child of the aforesaid J. P., and there is no child now living of any brother or sister of the said W. P., and, in case of the illegitimacy of W. S.’s children, the said W. P. would be his sole next of kin. 14. Stated the issue of A. B., the eldest daughter of W. S. Your petitioners therefore humbly pray — That your Lordships will be pleased to enter- tain this their application, and allow them to prosecute the necessary proceedings there- upon, and will be pleased to hear and determine the same, and to pronounce (on sufficient evidence being adduced by them or on their behalf) that the said W . S . and A. W. were lawfully married prior to the birth of the first-named petitioner, and his sister, J. R. S., and that your said first- named petitioner, W. P. R. S., is their legitimate son and heir and a natural-born subject of her Majesty, and that all proper parties may be cited. To this petition the. respondent, her 1 Majesty’s Attorney- General, answered: — First, that he left the said petitioners to make such proof thereof as they shall be enabled; and, Legitimacy Declaration Act, 1858. Ibid. 504 PRACTICE IN MATRIMONIAL SUITS. legitimacy Declaration Act, 1858. Specimen of pleadings in suit for declaration of legitimacy. secondly, claimed on behalf of the Crown all such right and interest as he pn behalf of the Crown should appear to have in the premises, and in any matter arising out of the proceedings upon this said petition, and submitted the same to the judgment, order, and direction of this honour- able Court. X. Y. S., the party cited, in substance answered that: — 1. The questions raised by the said petition (the material allegations of which I deny) have already been adjudged and finally determined against the first-named petitioner in suits instituted by him in the Court of Session in S., which judgments have been affirmed by the House of Lords, and will appear from the statement hereinafter contained; land I say that neither of the petitioners possesses the condition required by the first section of the Legitimacy Declaration Act, 1858, to entitle him or her to petition this honourable Court, or to claim the benefit of that Act. la. The matters raised by the petition were concluded by and in the judgments hereinafter mentioned. 2. That W. S. was, at the time of his death, owner in fee simple of landed property in A., and died with- out lawful issue, and intestate as to his estate in Scotland, leaving his nephew E. P. his heir-at-law, who thereupon became entitled to the said land (subject to the debts of the said W. S., which he, E. P., paid to a large amount), and was served thereto as heir, and entered into possession thereof; by such service his title to the estate, according to the law of S., was asserted and perfected; but was liable to be challenged within a certain period by action of reduction. 3. That on the 18th of December, 1801, the said W. P. E. S., then an infant, by H. C., his factor LEGITIMACY DECLARATION ACT, 1858. 505 loco tutoris, instituted in the Court of Session in S. legitimacy - 1 \ n, i . • . Declaration (having j urisdiction; an action or reduction against ^ct 1858. the said B. P., seeking to have the said service set Jbid aside, on the ground that he, W. P. B. S., and not the said B. P., was the rightful heir-at-law of the said W. S., and entitled to the lands of B.; that B. P. duly appeared tp and defended the said action, in which the following issues between the parties arose, whether the said W . P . B . S . was the legitimate son of the said W. S., and a natural- born subject of the realm, and heir-at-law of the said W . S . ; that by decree of the said Court of the 1st of July, 1803, it was determined that the said W. P. B. S. was not the legitimate son of the said W. S., nor his heir-at-law, nor a natural-born sub- ject of this realm, and that the said service should not be set aside. 4. That the said decree was conclusive unless reversed by the House of Lords, to whom an appeal lay. 5. That a petition of appeal to the House of Lords, in which the same material questions were directly in issue, was presented; that the House of Lords, on the 3rd of March, 1808, affirmed the decree of the Court of Session; that by the said judgment the status of the said B. P., as heir-at-law of the said W. S., and the illegitimacy of the petitioner, W. P. B. S., became and were, as between the parties to the said cause, matters finally adjudged and determined. 6. A bona fide sale of the lands of B., with warranty, &c., by B. P. to W. P., who is now in possession. 7. That in February, 1848, the said W. P. B. S. insti- tuted in the Court of Session in S. (having com- petent jurisdiction) an action of declarator, reduc- tion, and count and reckoning, against W . P . and B. S. P., and the guardian of the latter (since deceased), seeking, among other things, to have the 506 Legitimacy Declaration Act, 1858. Specimen of pleadings in suit for declaration of legitimacy. PRACTICE IN MATRIMONIAL SUITS. said service and the said decrees of the Court of Session and House of Lords and the said sale set aside, ion the ground, as alleged, that the said service and decrees have been obtained by fraud of W. P., R. P., and H. O., then deceased; that on the 25th (of April, 1849, pending the said last- mentioned action, the said W. P. R. S. instituted, in the said Court of Session, a supplementary action of declarator, reduction, and count and reckoning, against the same parties, seeking to have it declared that he, as the only and lawful son of the. said W. S., was his lawful heir, and praying the same relief as before, which actions were conjoined; that by a decree of the Court of Session on the 10th March, 1852, it was adjudged that the said service and judgment and decrees had not been obtained by fraud, and that the said W. S. was not married to the said A. W. prior to the birth of the said W. P. R. S., &c. 8. That the said W. P. R. S. presented an appeal from the last-mentioned judgment to the House of Lords, who, on the 15th of May, 1854, affirmed in all respects the decree of the Court of Session in the said conjoined actions, and also adjudged that the said W. P. R. S. was not a natural-born subject, but an alien, which question was in issue between the parties. 9. That at the time of bringing the original action of declarator, reduction, &c., in the 7th paragraph mentioned, another action was brought in the Court of Session, as a Consistorial Court having jurisdiction, by the said W. P. R. S., against the same parties, called an action of declaration of legitimacy, which was suspended till the termi- nation of the said conjoined actions, when judg- ment was given by default against the said W. P. R. S. LEGITIMACY DECLARATION ACT, 1858. 507 10. That the suits, actions and appeals in the 3rd, 5th, Legitimacy 7th and 8th paragraphs above-mentioned, were Aci^isis. brought by the said W. P. B. S. for the same ““ objects, and in respect of the same matters and things, as those for and in respect of which the said W. P. B. S. and the other petitioner now petition this Court, &c., and that the said final judgments and decrees in the said suits, actions, and appeals, are finally conclusive and binding as to those questions, and are a bar to the present petition. 1 1 . That the petitioners ought not to have the relief and decree for which they pray, because such relief and decree would be a proceeding which would neces- sarily and unavoidably affect and be repugnant to, and inconsistent with, the said final judgments and decrees referred to, and would necessarily confer on the said W . P . B . S . the status or condition of heir-at-law to the said W. S., which has alread'y by the said judgments been pronounced to have belonged to the said B. P., and successively to the said B. S. P., and would necessarily declare that the said W. S. and A. W. were lawfully married prior to the birth of the said W. P. B. S., and that the said W. P. B. S. is their legitimate son and heir, and a natural -born subject of the realm, con- trary to the said final judgments and decrees whereby, &c., and that the relief and decree prayed by the said petitioners is precluded by the 10 th section of the Legitimacy Declaration Act, 1858, whereby it is enacted “ that no proceeding to be had under the said Act shall affect any final judg- ment or decree already pronounced or made by any Court of competent jurisdiction.” 12. Denies that the said W. P. B. S. is a natural-born subject of the realm, or son and heir-at-law of the said W. S., or that the other petitioner has any 508 Legitimacy Declaration Act, 1858. Specimen of pleadings in suit for declaration of ^ legitimacy. Citing third persons to see proceedings. Attorney - General, what documents served on. No pleadings except petition and affidavit in support served on Attorney- General. PRACTICE IN MATRIMONIAL SUITS. interest in the matter, save through the said W. P. R. S. 13. Denies W. S. to have been the lawful father of W. P. R. S. 14. Denies W. S. to have been at the timJe of his death a British subject. 15. Denies the marriage of W. S. and R. K. 16. Denies the marriage of W. S., widower, to A. W., in 1790, or that from that time they cohabited as lawful husband and wife, and were so reputed, &c. 17. Denies any lawful issue of W. S. and A. W. 18. Denies any knowledge of, or privity to, the action of ejectment in N. Y. in 1855. 19. Denies that W. P. R. S. was left in a state pf ignorance as to the alleged marriage of W. S. and of other family matters, by any member of his family, or was hindered from establishing in G. B. the said alleged marriage by the conduct of R. P., J. P., or H. C. Prayed to reject the prayer of the petition, and to be dismissed with costs. [The affidavit verifying the petition will he as in Form 7, ante, p. 298.] The petitioner applies by summons before the registrar for leave to cite such persons to see proceedings as the necessities of the case may require, and serves the summons on the Attorney-General, on Whom all other summonses and notices must also be served, if they in any way affect his interest as statutory respondent. But with the excep- tion of the copy of the petition and affidavit in support, it is not necessary to serve any pleading between the other parties upon the Attorney-General. LEGITIMACY DECLARATION ACT, 1858. 509 Form 99. Citation in Suit for Declaration of Legitimacy. [' Commencement as in Form 9, ante, p. 301.] To X. Y. S., of , in the county of Whereas W. P. E. S., of , and A. J. S., of , claiming to be domiciled in England, and our natural-born subjects, and to be respectively the natural and lawful son and grandson of W. S. and A. W., have filed their petition in the Divorce Eegistry of our said Court, praying for a declaration of the validity of the marriage between the said W. S. and A. W., and that the said W. P. E. S. be declared to be the natural and lawful son of the said W . S . and A. W. And whereas by an order, bearing date the day of , 18 , it was ordered that you, the said X. Y. S., a natural and lawful uncle of the said W. P. E. S., be cited to see proceedings in this suit. Now this is to command, &c. {Conclude as in Form 9.) The citation is not served upon the Attorney-General. After issue of the citation, the title of the above cause Would be — “W. P. E. S. and A. J. S. y. The Attorney -General (X. Y. S. cited).” The registrar’s certificate is obtained, and the cause set down and heard, as shown ante , pp. 368 — 388. The marriage certificate (if any) of the parents of the petitioner or petitioners, jand the certificate of the registra- tion of the birth of the petitioners themselves, should be filed before applying for the registrar’s certificate that the pleadings are in order. \_On the subject of fees and costs , see post, title “ Practice as to Costs," pp. 540 — 603. Legitimacy Declaration Act, 1858. Citation, form of. Need not be served on Attorney- General. Title of cause after citation. Setting down cause for hearing, hearing trial, &c. Certificates of marriage and other documents required to he filed. Fees. Costs. 510 PRACTICE IN MATRIMONIAL SUITS. Legitimacy Declaration Act, 1858. Guardian to minor. Trial by jury of petition under Legitimacy Declaration Act, 1858. Claim for a declaration of legitimacy cannot be inserted in a statement of claim in a probate action. A petition by a minor to establish his legitimacy can only be brought by a guardian: Upton, In re (1860), 6 Jur. N. S. 404 ; and the Court will not assign a guardian unless satisfied the suit is for the benefit of the infant: Chaplin, In re (1867), L. E. 1 P. & D. 328; 36 L. J. P. 49, 90; 16 L. T. 154, 612. For the practice as to assigning a guardian, see ante, pp. 319—328. If the allegations in the petition are not traversed, the Court will not make an order for the issues in a suit under the Legitimacy Declaration Act to be tried by a jury: Ryves and Ryves v. Att.-Gen. (1865), L. E. 1 P. & D. 23; 35 L. J. P. 6; 13 L. T. 305; but, as a rule, the Court will, at the request of either party, direct the issues to be tried by a jury: In re Bouverie (1862), 2 S. & T. 548; 31 L. J. P. 79; 6 L. T. 692. A jury was refused in the case of SacJcville- West v. Att.-Gen. (Lord Sackville and others cited), (1910) P. 143; 79 L. J. P. 34. A claim for a declaration of legiti- macy cannot be joined with a claim for probate in a probate action: Warter v. Warter (1890), 15 P. D. 35; 59 L. J. P. 45; 62 L. T. 328.] MOTIONS AND SUMMONSES. 511 Summary Jurisdiction (Married Women) Act, 1895. ♦ [. For the 'practice as to appeals from magistrates under the above Act, see post, title “ Practice as to Appeal p. 525.] Practice as to Motions and Summonses. The summary jurisdiction of the Court is exercised on motion, or by summons. These are of the same nature as those at common law, and a motion, in like manner, must generally be founded on affidavit. As will be gathered from the following 1 rules, the party desirous of making a motion must in general (unless it be an ex parte motion) serve on the opposite parties appear- ing, four clear days before the hearing thereof, a notice of motion in writing, signed by the party or his solicitor. It is sufficient service to leave the notice at the address for service furnished by the other side. If the order be obtained without due notice to the other side, such order will be rescinded. By rule 115, “When it is necessary to give notice of any motion to be made to the Court, such notice shall be served on the opposite parties who have entered an appear- ance four clear days previously to the hearing of such SUMMARY JURISDIC- TION ACT, 1895 (58 & 59 Viet, c. 39). MOTIONS AND SUM- MONSES. Summary- jurisdiction of Court. Motion. Notice of. Four days notice of motion. 512 PRACTICE IN MATRIMONIAL SUITS. Motions and Summonses. Order obtained without notice to the other side. Notice of motion not required where no appearance entered. Case on motion, contents of. Affidavits in support. Copies of affidavits to motion, and a copy of the notice so served shall be filed in the registry with the case for motion, but no proof of the service of the notice will be required, unless by direction of the Judge Ordinary.” By rule 116, “ If an order be obtained on motion with- out due notice to the opposite parties, such order will be rescinded on the application of the parties upon whom the notice should have been served; and the expense of and' arising from the rescinding of such order shall fall on the party who obtained it, unless the Judge Ordinary shall otherwise direct . ’ ’ [ It is not necessary to give notice of motion if no appear- ance has been entered by the other side .] By rule 147, “ Cases for motion are to set forth the style and object of, and the names and descriptions of the parties to, the cause or proceeding before the Court; the proceedings already had in the cause, and the dates of the same ; the prayer of' the party on whose behalf the motion is made, and briefly, the circumstances on which it is founded.” By rule 148, “ If the cases tendered are deficient in any of the above particulars, the same shall not be received in the registry without permission of one of the registrars.” By rule 149, “ On depositing the case in the registry, and giving notice of the motion, the affidavits in support of the motion, and all original documents referred to in such affidavits, or to be referred to by counsel on the hearing of the motion, must be also left in the registry; or in case such affidavits or documents have been already filed or deposited in the registry, the same must be searched for, looked up, and deposited with the proper clerk, in order to their being sent with the case to the Judge Ordinary.” And by rule 150, “ Copies of any affidavit or documents to be read or used in support of a motion are to be de- MOTIONS AND SUMMONSES. 513 livened to the opposite parties to the suit who are entitled to be heard in opposition thereto.” The applicant or his solicitor must therefore file in the registry the following documents: — 1. Case for and copy notice of motion. 2. Affidavits in support. 3 . Any original documents referred to in such affidavits or to be referred to by counsel. Copies of the affidavits or documents to be used should be delivered to the other side in time to allow of their being answered, or the motion may be adjourned for that purpose. The motion papers, together with all the papers already filed in the cause, are sent from the Divorce Registry to the Court, before the hearing of the motion. The following are suggested as forms of notice of case on motion: — Motions and Summonses. be delivered to other side. Documents to be filed. Copies to be delivered to the other side. Form 100. Notice of Motion. [Heading in Cause as , e.g 1 ., in Farm 8.] Take notice that this honourable Court will be moved on Monday, the day of , 19 , by counsel on behalf of (as the case may he) to (set out fully the nature of the application , and conclude with the words), or in the alternative for such other order as to the Court shall seem meet. Dated the day of , 19 (Signed) R. C. B. Solicitor for the petitioner. To W. Solicitor for the respondent. [But dny notice of motion that fulfils the requirements of rule 113, ante, p. 375, will suffice . ] D.M.C. 33 514 PRACTICE IN MATRIMONIAL SUITS. Motions and Summonses. Case on motion, form of c. Day for hearing- motions. When papers to be left in registry. Form 101. Case on Motion. [Reading in Cause as , e.g., in Form 8, ante, p. 299.] Case on behalf of A. B., the petitioner (or as the case may be), to dispense with making the alleged adulterer a co-respondent (or to dispense with personal service of the citation on , or as the , case may be). 1 . This is a suit for dissolution of marriage brought by A . B . against C . B . his wife, on the ground of her adultery with R. S. (or as the case may be). 2. (Set out the grounds for matting the application, as “the said R. S. died on or about the day of , 19 ” (or set out fully attempts that have been made to effect service, together with account of enquiries as to the whereabouts of the party it is desired to serve, dc., tatting care to give the Court the fullest information in your power, whatever the nature of the application may be).) Copies of the following papers are left herewith: — 1. Petition for dissolution of marriage. 2. Affidavits of G. H. as to 3. Affidavit of J. K. on the same subject. Counsel on behalf of (as the case may be) will move that he be excused from making the alleged adulterer a co-respondent (or ivhatever the nature of the application may be). Dated the day of , 19 . There is a special day fixed for taking motions, generally Monday, in each week; and the above-mentioned docu- ments, on which the motion is to be founded, must be filed in the registry before 2 p.m. on the preceding Wednesday ; except for the first motion day in each sitting, when they must be filed before 2 p.m. on the preceding Tuesday. In vacation, motions are heard by the registrars every alternate W ednesday . MOTIONS AND SUMMONSES. 515 Ex parte applications do not require notice to be given to the other side. Due notice of the motion days during the sittings are printed in what are called “term cards,” which can be obtained at Somerset House, the Royal Courts, and else- where, and vacation notices are posted up at the Divorce Registry, which give the days on which the registrars will hear motions. Motions and Summonses. Ex parte applications. Printed lists of motion days. There are several distinct cases where the rules expressly require the application to be made by motion. They are as follows: — List of matters dealt with on motion only. 1. Application to dispense with making a co-respon- dent ( rules 4 and 5) . 2. To substitute some mode other than personal for service of petitions, citations, or any orders, &c. requiring personal service ( rules 13 and 97). 3. For leave to intervene when the proposed intervener is one of the public ( rule 23). No motion to intervene is necessary when the King’s Proctor intervenes in his official capacity. 4. To object to or confirm registrar’s report as to main- tenance and variation of settlements (rule 102). 5. For writ of attachment ( rule 110). 6. To discharge protection order ( rule 125). 7. For an injunction to restrain one of the parties from annoying the other unnecessarily, or from dissi- pating his or her property. The above appear to be the only matters which it is necessary to bring before the Court by motion, though there may be important and unusual applications which should still be made by motion. It is a little difficult to understand the case of applica- tions for the “ custody, maintenance, and education of ” as distinguished from “ access to ” children. In the sixth edition of this work, published in 1896, it is laid down that applications for the custody of children must 33 (2) Dispensing with co- respondent. Substituted service. Leave to intervene. To confirm registrar's report ; main- tenance and settlements. Attachment. Discharging protection order. Injunction. Custody of children ; practice as to motion altered. 516 PRACTICE IN MATRIMONIAL SUITS. Motions and Summonses. Ibid. Motions on appeal. Affidavits filed in opposition to motion. Practice as to handing in in Court. Copies of affidavits in opposition should be delivered to other side as soon as possible. Adjournment of motion. Practice as to. be made on motion. And indeed, on reference to the rules, such would appear to be the case. Rule 104 requires all orders for custody, maintenance, education of, or access to, children to be applied for by' motion. Rule 212 permits applications for access only to be made in the first instance on summons to a registrar, but is absolutely silent as to custody, maintenance, and education. No new rule on the subject has ever been promulgated, and yet for some years all these matters have been dealt with in chambers, contrary to the express pro- visions of the rules as they still stand. [ Motions by way of appeal from the judge in chambers, to himself sitting in Court, and motions to a Divisional Court, are dealt with under title “ Appeal post, p. 525.] Affidavits sworn in opposition to the motion are handed in at the hearing. The parties tendering them hand in the stamp for the filing fee (2s. 6d.) at the same time (which is generally pinned on to the document, in order that it may be affixed by the proper officer, who sends them on to the Divorce Registry, after the motion has been heard, for filing). If not handed in at the hearing of the motion, such affidavits cannot be filed without leave of the Court. The party opposing the motion should deliver copies of the affidavits it is proposed to use in answer to the other party as soon as possible, that he or she may have the opportunity of becoming acquainted with the contents of such affidavits. If the motion cannot be disposed of at the hearing, it is adjourned. If so, a notice of renewal must be filed in the Divorce Registry (filing fee 2s. 6d.), and the same process is gone through with respect to fresh affidavits and counter affidavits as before. All the papers in the cause, besides those used at the first hearing of the motion, must be before the Court on MOTIONS AND SUMMONSES. 517 the adjourned hearing; and if any of them have been returned into the registry, they are sent back to the Court for that purpose. The order, when made, is entered in the motion book for the day by the registrar who is then sitting in Court. It is not necessary to leave counsel’s briefs. If an office copy is required, it can be ordered any time not less than forty-eight hours after the hearing. [For time for appeal, see post, title “ Appeal ,” p. 525.] FEES. Filing case (including the order) Filing notice . . . . Filing affidavits (each) . Filing notice of renewal (if any) . £ s. d. 0 10 0 0 2 6 0 2 6 0 2 6 [For costs allowed on taxation, see post, pp. 540 — 603.] All other ordinary applications should be made by sum!- mons, and not by motion, and it has been laid down that, where a wife’s application should have been made by summons and not by motion, if made by motion the husband will be liable for so much only of the costs of the application as would have been incurred on summons. Applications expressly directed to be made on summons, if made on motion, would, in addition to the loss of costs, be probably rejected. [It would seem that an application to dismiss a petition for dissolution by consent ought now to be made by summons in chambers and not by motion in open Court: Slater v. Slater and Bolderson (1900), 69 L. J. P. 48.] Motions in open Court, it is needless to say, must always be made by counsel. In the case of summonses counsel are usually taken before the registrar when the matter is of importance. Motions and Summonses. Order on motion. Office copy of. Time for appeal. Summonses. Effect of making motion instead of summons. Application to dismiss petition for dissolution by consent ; summons, not motion. 518 PRACTICE IN MATRIMONIAL SUITS. Motions and Summonses. Certificate for counsel necessary on summons before registrar ; but not before judge. Nearly all summonses now heard in the first instance before a registrar. Ibid. When counsel appear before a registrar it is neces- sary they should ask for a certificate that the case is a fit and proper one for counsel to attend, otherwise the costs of such attendance will not be allowed on taxation either as party and party costs or between solicitor and client. On the other hand, the costs of counsel on summonses before a judge are always allowed. The following rules are so important that though they have already been given in extenso, ante , p. 284, it has been thought worth while to repeat them here. The practical effect of them, is that nearly all summonses come before the registrar in the first instance, and that the words “ Judge Ordinary ” occur in most places where the word 11 registrar” ought to be substituted. Additional and Amended Eules, 23rd February, 1875. By rule 181, ‘'All summonses heretofore heard by the registrars of the principal registry of the Court of Probate in the absence of the Judge Ordinary shall hereafter be heard before one or more of the registrars at the principal registry of that Court during the period appointed for the sittings of the Court at Westminster, as well as in the judge’s absence.” By rule 182, “ All rules and regulations in respect to summonses now heard before the Judge Ordinary in chambers at Westminster shall, so far as the same are applicable, be observed in respect of the summonses heard before one or more of the registrars at the principal registry.” [ See rules from 160 to 168.] By rule 183, “ The registrar before whom the summons is heard will direct such order to issue as he shall think fit, or refer the matter at once to the Judge Ordinary.” MOTIONS AND SUMMONSES. 519 By rule 184, “ Any person heard on the summons objecting to the order so issued under the direction of the registrars may, subject to any order as to costs, apply to the Judge Ordinary on summons to rescind or vary the same.” And by rule 168, “ The same rules and regulations shall, so far as applicable, be observed in respect of summonses which may be heard and disposed of by the registrars.” By rule 160, “ A summons may be taken out by any person in any matter or suit depending in the Court for divorce and matrimonial causes, provided there is no rule or practice requiring a different mode of proceeding.” [The following forms of summonses may he found useful as 'precedents :] Form 102. General Form of Summons before a Judge. [Reading in Cause as , e.g., in Form 8, ante, p. 299.] Let the petitioner’s (or, respondent’s) solicitor or agent attend one of the judges of this division at his chambers at the Royal Courts of Justice on next, the day iof , 19 , at of the clock in the noon, to show cause why the [Insert here particulars of application .] Dated the day of , 19 This summons issued by W. W. & Co., solicitors for respondent (or petitioner). Form 103. The same before a Registrar. [Reading in Cause as , e.g.,. in Form 8, ante, p. 299.] Let the petitioner’s (or respondent’s) solicitor or agent attend one of the registrars at the registry of the Motions and Summonses. Appeal from registrar to judge. Summons, who may take out. Summons before judge, form of. Ibid, before registrar. 520 PRACTICE IN MATRIMONIAL SUITS. Motions and Summonses. Summons for appointment of medical inspectors ; nullity. Two copies of summons to be prepared by solicitor. Practice as to, in registry. If to be attended by counsel, to be so marked. High Court of Justice, at Somerset House, Strand, in the county of Middlesex, on next, the day of , at of the clock in the noon, to show cause why [ Conclude as in Form 102.] Form 104. Summons for Appointment of Medical Inspectors in a Suit for Nullity on the ground of Impotence. B. (otherwise K.) v. K. Let the respondent’s solicitor or agent attend before one of the registrars at the Divorce Registry of our said Court, at Somerset House, Strand, in the county of Middlesex, on next, the day of ,19 , at 11.30 in the forenoon, to show cause why medical inspectors should not be appointed to examine and inspect and report in writing upon the parts and organs of generation of B., otherwise K., the petitioner in this cause, and of K., the respondent in this cause. Dated the day of , 19 This summons issued by solicitor for [ The words “ and also to show cause why this cause should not he heard in camera ” can he added to this summons.'] Two copies of each summons should be prepared and settled by the solicitor and taken to the Divorce Registry (Room 38) by the solicitor. The particulars of the sum- mons should be filled in, and the day and hour at which it is returnable. One copy should be indorsed in the cause, and the fee stamps (8s.) affixed to the other at the bottom corner on the right hand. The indorsed copy is stamped with the judge’s signature and returned to the solicitor, the other retained in the registry. If the summons is to be attended by counsel, it should be marked “counsel” MOTIONS AND SUMMONSES. 521 before it is served, so that the other side may be made aware of the fact. By rule 161, “ The name of the cause or matter, and of the agent taking' out the summons, is to be entered in the summons book, and a true copy of the summons is to be served on the party summoned one clear day at least before the summons is returnable, and before 7 o’clock p.m. On Saturdays the copy of the summons is to be served before 2 o’clock p.m.” By rule 162, “ On the day and at the hour named in the summons the party taking out the same is to present himself with the original summons at the j udge’s chambers, or elsewhere appointed for hearing the same.” [ The affidavits which are to he made use of as evidence at the hearing should he left with the registrar, with the stamp for the fee (2s. 6d.) pinned on to them .] By rule 163, “ Both parties will be heard by the Judge Ordinary (or registrar), who will make such order as he may think fit, and a minute of such order will be made by one of the registrars in the summons book.” [$ee also rules 181 to 184. The signed summons must he produced at the hearing. The registrar sometimes refers the matter to the judge. In any event an appeal lies hy summons to the judge within four days.'] Summonses are heard by the judge at the Royal Courts of Justice, in his chambers, every Saturday during the sittings at half -past ten, and, on application by counsel under special circumstances, at other times. The registrars hear summonses at the principal Probate and Divorce Registry every Tuesday and Friday during the sittings at half -past eleven, and every day during the vacations that the registry is open, at the same hour. By rule 164, “ If the party summoned do not appear after the lapse of half an hour from the time named in the summons, the party taking out the summons shall be at Motions and Summonses. Service of summons. Hearing of summons. Ibid. When and where sum- monses heard. Party sum- moned failing to attend. 522 PRACTICE IN MATRIMONIAL SUITS. Motions and Summonses. Ibid, order made. Affidavit of service required. Affidavit of service of summons, form of. liberty to go before the Judge Ordinary” (or “regis- trar”), “who will thereupon make such order as he may think fit.” And by rule 166, “If a ; formal order is desired, the same may be had on the application of either party, and for that purpose the original summons, or the copy served on the party summoned, must be filed in the registry. An order will thereupon be drawn up, and delivered to the person filing such summons or copy.” It is necessary also to file an affidavit of service and non-attendance, which should be (more or less) in the following form: — Form 105. Affidavit of Service and Non-Attendance. [Reading in Cause as , e.g.,- in Form 8, ante, p. 299.] I, E. C. B., of 225, Coleman Street, in the city of London, solicitor for the petitioner in this cause, make oath and say: — 1 . That I did on the day of , in the year of our Lord one thousand eight hundred and , before the hour of five of the clock in the evening, serve C. B., the respondent [or as the case may b&\ in this cause, with a true copy of the summons hereunto annexed (marked) by leaving the same at the office of the solicitors of the said C. B. (Messrs. B. & J.), situate at 66, Frederick’s Place, in the said city, with W. B., one of the partners in the said firm there. 2. And I further say that I did attend the said sum- mons at the return thereof, that is to say, on the day of , at , from the hour of of the clock in the noon until half an hour after the said hour of of the clock on that day, but that the said did not nor did any person on MOTIONS AND SUMMONSES. 523 her behalf attend to oppose an order being made on the said summons to my knowledge or belief. Sworn, &c. [Forms of this affidavit may be obtained in the registry ( Room No. 43). The summons annexed must be marked by the Commissioner who swears the affidavit . The order may be called for two or three days later . ] By rule 165, “An attendance on behalf of the party summoned for the space of half an hour, if the party taking out the summons do not during such time appear, will be deemed sufficient, and bar the party taking out the summons from the right to go before the J udge Ordinary (i or registrar) on that occasion.” The solicitor, having complied with the above rule, can ask the registrar to mark his attendance on the summons with his costs (6s. 8 d.). By rule 167, “ If a, summons is brought to the registry, with consent to an order endorsed thereon, signed by the party summoned, or by his proctor, solicitor, or attorney, an order will be drawn up without the necessity df going before the Judge Ordinary; provided that the order sought is in the opinion of the registrar one which, under the circumstances, would be made by the Judge Ordinary.” [The order will be drawn up in due course, and may be obtained a day or two afterwards. But a summons must have been taken out , otherwise the consent cannot be fUed.~\ If the registrar refers the matter before him to the judge, he adjourns the summons to the judge in chambers. The judge then hears it on the first day on which he happens to be hearing summonses. The solicitor gives notice of the adjournment to the Divorce Registry where the summons is placed in the adjourned summons book, and from whence the necessary papers are forwarded to the Court. If the solicitor fails to give immediate notice to the Divorce Registry, the hearing of the adjourned Motions and Summonses. Summons should be annexed to affidavit and marked by commissioner. Non-attend- ance of party taking out summons. Solicitor can ask registrar to mark his attendance and costs upon summons. Consent summons. Practice. Summons adjourned to judge ; practice on adjournment. 524 PRACTICE IN MATRIMONIAL SUITS. Motions and Summonses. Appeal. Order on summons. Service of order. Property claimed by wife, registrar can only report as to. summons may be delayed, which will probably mean that it will not be heard for a week later than it ought to be. [ As to appeals from the judge in chambers, see post, title “ Appeal ,” p. 525.] The order made on the summons is drawn and signed by the registrar, and can be obtained in the Divorce Registry the next day. It is entered on the minutes of the cause. The order must be served by leaving a plain copy with the solicitor for the other side, or at the address for service if such party appear in person. [ With respect to the costs of summonses, see post, title “ Practice as to Costs,” p. 540. In a isuit for dissolution the registrar cannot make an order on summons directing the husband to give up property claimed by the wife. He can only inquire and report as to the property: Wood v. Wood and White (1889), 14 P. D. 157; 58 L. J. P. 68; 61 L. T. 338. See also Be Ricci v. Be Ricci , (1891) P. 378; 61 L. J. P. 17.] APPEAL. 525 Practice as to New Trial and Re-hearing. [This subject is dealt with in the next title, “ Appeal.” See also Part 1., Chap. XV., pp. 223 — 227.] Appeal. The following is a short summary of what are the actual rights of appeal in causes and other proceedings in the Matrimonial Court at the present time: — 1. From the decisions of justices under the Summary Jurisdiction ( Married Women) Act, 1895, an appeal lies to a Divisional Court of the Probate, Divorce, and Ad- miralty Division ( see ante, p. 215). 2. An application for a re-h earing of a divorce cause as distinguished from a new trial ( that is, where such cause has been heard without a jury , see ante, p. 223), must also in the first instance be made to a Divisional Court of that Division , from whose decision an appeal lies to the Court of Appeal. 3. From a decision on a summons before the registrar at chambers an appeal lies to a judge at chambers, from the judge at chambers to the judge in Court, from the judge in Court to the Court of Appeal, and from thence ( with leave) to the House of Lords. [But appeals from orders in chambers are subject to the same rules in the Probate as in the Chancery Division, and will not be entertained by the Court of Appeal unless the judge gives leave to appeal direct, or certifies that he does not require to hear further argument: In re Smith, Figg v. Hughes (1884), 9 P. D. 68; 53 L. J. P. 62; 50 L. T. 293.] NEW TRIAL AND RE- HEARING. APPEAL. Appeals in matrimonial causes, &c. From justices to Divisional Court. For re- hearing ; to Divisional Court in first instance. From judge in chambers. 526 PRACTICE IN MATRIMONIAL SUITS. Appeal. For new trial. Appeal to House of Lords without leave. Costs of wife in House of Lords. From other decisions. What decisions of Court of Appeal give right to go to House of Lords with- out leave. As to costs, &c. Appeal formerly to full Court up to 1881. 4. Every application for a new trial of a matrimonial cause must, since the coming into force of the Supreme Court of Judicature Act , 1890 (53 & 54 Viet. c. 44), be made in the first instance direct to the Court of Appeal , instead of as previously to a Divisional Court of the Pro- bate, Divorce , and Admiralty Division. [An appeal lies without leave to the House of Lords from an order of the Court of Appeal for a new trial of a suit in which a decree nisi has been granted by the Divorce Court on the verdict of a jury: Butchart v. Butchart and Hill , (1901) A. C. 266; 70 L. J. P. 29; 84 L. T. 209. Except in very exceptional cases, a wife is not entitled as against her husband to her costs of an appeal to the House of Lords where she is the appellant, if the judgments of the Courts below have found her guilty of a matrimonial offence, and have declared her to have ceased to be the wife of the respondent: Begg v. Begg (1890), 15 App. Cas. 170.] 5. All other appeals from the decisions in causes matri- monial must be made in the first instance to the Court of Appeal, from whence an appeal lies ( with leave) to the House of Lords. A party may appeal without leave to the House of Lords from any decision of the Court of Appeal upon the grant or refusal of a decree on a petition for dissolution or nullity of marriage, or for a declaration of legitimacy, but in every other case the leave of the Court of Appeal must be obtained before a party to a ' matrimonial cause can go to the House of Lords. 6. By sect. 49 of the Judicature Act, 1873: “ No order made by the High Court of Justice or any Judge thereof, by the consent of parties, or as to costs only, which by law are left to the discretion of the Court, shall be subject to any appeal, except by leave of the Court or Judge making such order N In the sixth edition of this work the various alterations in the mode of appeal in causes, &c. matrimonial, from the first institution of the Divorce Court to the year 1897, APPEAL. 527 are carefully traced. But, however interesting to the Appeal, student, disquisition on the past history of appeal in the Divorce Court is not consistent with the purpose of the present edition. For our present purpose it is sufficient to say that up to Former the year 1881, an appeal from the decisions of the Judge P ractlce * Ordinary lay fo a tribunal called the “ Full Court,” con- sisting usually of three judges — though seven judges besides the J udge Ordinary were liable to he called to sit upon it at any time — and constituted and regulated by the Mat. C. Act, 1857, ss. 8, 55 and 56; the Mat. C. Act,, 1858, s. 17; the Mat. C. Act, 1860, ss. 1, 2 and 3; and the Mat. C. Act, 1868, s. 3. Now by sect. 9 of the Supreme Count of Judicature Act, Now to Court 1881 (44 & 45 Viet. e. 68), it is enacted that: “All of Appeal ‘ appeals which, under section fifty-five of the Act of' the twentieth and twenty -first years of her present Majesty, chapter eighty -five, or under any other Act, might be brought to the full court established by the said first- mentioned Act, shall henceforth be brought to her Majesty’s Court of Appeal and not to 'the said full court. “ The decision of the Court of Appeal on any question Appeal to arising under the Acts relating to divorce and matri- LordT ° f monial causes or to the declaration of legitimacy, shall be final, except where the decision either is upon the grant or refusal of a decree on a petition for dissolution or nullity of marriage, or for a declaration of legitimacy, or is upon a question of law on which the Court of Appeal give leave to appeal; and, save as aforesaid, no appeal shall lie to the House of Lords under the said Acts. “Subject to any order made by the House of Lords, must be in accordance with the Appellate Jurisdiction Act, 1876, oue every appeal to the House of Lords against any such decision shall be brought within one month after the decision appealed against is pronounced by the Court of Appeal, if the House of Lords is then sitting, or, if not, within fourteen days after the House of Lords next sits. 528 PRACTICE IN MATRIMONIAL SUITS. Appeal. Appeal to House of Lords against decree absolute. Appeal to House of Lords generally. Time for. Application for new trial or rehearing previous to passing of Judicature Act, 1890. “ This section, soi far as is consistent with the tenor thereof, shall he construed as one with the said Acts.” And by sect. 10 of the same Act, “ No appeal from an order absolute for dissolution or nullity of marriage shall henceforth lie in favour of any party who, having had time and opportunity to appeal from the decree nisi on which such order may be founded, shall not have appealed therefrom.” [An appeal to the House of Lords in a matrimonial cause lies only from a decision of the Court of Appeal. For in- stance, if a respondent desires to appeal against a decree nisi , he or she must appeal to the Court of Appeal. But if the Court of Appeal make the decree absolute, then (but not before) the respondent may appeal against the decree abso- lute to the House of Lords. An appeal to the House of Lords must be within one 'month after the decision appealed against has been pronounced by the Court of Appeal, if the House is then sitting. If not, then within fourteen days after the House next sits: Cleaver v. Cleaver (1884), 9 App. Cas. 631.] By rule 62, an application for a new trial of the issues of fact tried by a jury, or for a re-hearing of 1 a cause, shall be made to a Divisional Court of the Probate, Divorce, and Admiralty Division, and shall be by notice of motion filed in the registry, stating the grounds of the application, and whether all or part only of the verdict, or findings, or decree is complained of; and such notice of motion shall be filed and served upon the other parties to the cause or their solicitors within eight days after the trial or hearing, and the motion shall be made eight days after the service of such notice if a Divisional Court he then sitting, other- wise on the first day appointed for a sitting of the Divi- sional Court. The time of the vacations shall not be reckoned in the computation of time for serving such notice. And by rule 62a, the notice of motion may be amended APPEAL. 529 at any time by leave of the Court or a judge, on such terms as the Court or judge may think fit. Rule 62 was amended as above in 1887, previous to which time applications for a new trial or rehearing were made to a judge of the Probate Division sitting alone. From the decision of the Divisional Court an appeal lay to the Court of Appeal. As motions for rehearing of a cause heard before the Court itself are still made to a Divisional Court, the practice with respect to such motions is still governed by rule 62. The following form of notice may be useful as a precedent : — Form 106. Notice of Motion for a Rehearing. [Heading in Cause as, e.g., in Form 32.] Take notice that the Divisional Court of the above Division will, on the day of , 19 , be moved by counsel on behalf of the petitioner [or respondent] for a rehearing of the above cause on the following grounds: — 1. That the verdict of the jury upon the issue charging the petitioner with adultery was against evidence : 2. That the verdict of the jury upon the issue charging the petitioner with desertion was against evidence: 3 . That the right honourable the President misdirected the jury. [State grounds of misdirection .] To Messrs. W. W. & Co., 66, Frederick’s Place, Old Jewry, E.C., Respondent’s [or petitioner’s] solicitors.. By sect. 1 of the Supreme Court of Judicature Act, 1890 (53 & 54 Viet. c. 44), “From and after the com- mencement of this Act, every motion for a new trial, or to set aside a verdict, finding, or judgment, in any cause or D.M.C. 34 Appeal. Rehearing-, motion for. Form of. Supreme Court of Judicature Act, 1890 (53 & 54 Viet, c. 44), s. 1. 530 PRACTICE IN MATRIMONIAL SUITS. Appeal. Motions for new trial. Rehearing still to Divisional Court. Duty of Court of Appeal where case tried by Judge in Court below. Enlarging time for appeal. matter in the High Court in which there has been a trial thereof, or of any issue therein with a jury, shall be heard and determined by the Court of Appeal, and not by a divisional court of the High Court: Provided always, that such motions shall be heard and determined before not less than three judges of the Court of Appeal sitting together.” [Por some time after the passing of this statute it was held that every application, either for a new trial or a re- hearing of a divorce cause, must be made in the first instance direct to the Court of Appeal. But on July 21st, 1897, it was decided by the Court of Appeal that sect. 1 did not apply to applications for a “ rehearing,” but that all such applications must be made in the first instance to a Divi- sional Court of the Probate, Divorce and Admiralty Division : Smith v. Smith (J. M. Nowers intervener), (1897) P. 293; 66 L. J. P. 151; 77 L. T. 206; see also Watson v. Watson (1903), 89 L. T. 78. Where a case tried by a judge in the Court below, without a jury, comes before the Court of Appeal ( which may still happen in a matrimonial cause on appeal from the Divisional Court), that Court will presume that the decision of the judge on the facts was right, and will not disturb it unless the appellant satisfactorily makes out that it was wrong (per Lord Esher, M. R., and Lopes, L. J.). Per Kay, L. J.: “Under Order LVIII. the Court of Appeal is bound to try the case and give the judgment which ought to have been given, though in a doubtful case the judgment of the Court below is entitled to great weight”: Colonial Securities Trust Co. v. Massey, (1896) 1 Q. B. 38; 65 L. J. Q. B. 100; 73 L. T. 497. Previously to the passing of this statute it was held by the Court of Appeal that an appeal against the decision of a judge of the Divorce Court granting or refusing a new trial or rehearing in the Divorce Court must be made within fourteen days, in accord- ance with the Divorce Act, 1860, s. 2; and that the Court of Appeal had no power to enlarge the time: Ahier v. Ahier (1885), 10 P. D. 110; 54 L. J. P. 70; 52 L. T. 744. But the Court of Appeal has since held, that in spite of Ord. LXYIII. r. 1, which excepts matrimonial causes from the operation of the rules and orders of the Supreme Court, since the passing of the Supreme Court of Judicature Act, 1890, the practice with regard to a new trial of a divorce cause is regulated (not by the practice under the Matrimonial Causes APPEAL. 531 Acts, but) by the practice of the Court of Appeal, and conse- quently rule 7 of Ord. LXIV. of the Rules of the Supreme Court applies, and empowers the Court to grant an enlarge- ment of the time within which to move for a new trial of the cause, and as a condition of so doing to impose terms on the party who makes the application: Wilkins v. Wilkins, (1896) P. 108; 65 L. J. P. 55; 74 L. T. 62. On application for a new trial the Court of Appeal has power to enter judgment for the appellant if convinced that the verdict is perverse, and that no further evidence could be given: Allcock v. Hall, (1891) 1 Q. B. 444; 60 L. J. Q, B. 416; 64 L. T. 309. When the Court of Appeal is equally divided, and the decision is unreversed, it is not bound, when a similar case is brought before it, by the decision in the previous case: The Vera Cruz (1884), 9 P. D. 96; 53 L. J. P. 33; 51 L. T. 104. The Court of Appeal has no jurisdiction to entertain an original application to dismiss an action for want of prosecution, although the delay relied on is in not proceeding to a new trial ordered by the Court of Appeal: Robarts v. French (1895), 72 L. T. 147.] OBy the Supreme Court of Judicature (Procedure) Act, 1894 (57 & 58 Viet. c. 16), s. 1, it is enacted that — 1. — (1.) No appeal shall lie — (a) from an order allowing an extension of time for appealing from a judgment or order; nor (b) without the leave of the Judge, or of the Court of Appeal, from any interlocutory order or interlocu- tory judgment made or given by a Judge, except in the following cases, namely: — (i.) where the liberty of the subject or the custody of infants is concerned; and (ii.) cases of granting or refusing an injunction or appointing a receiver; and (iv.) any decree nisi in a matrimonial cause, . . . .; and (vi.) such other cases, to be prescribed by Rules of Court, as may in the opinion of the authority for making such rules be of the nature of final decisions. 34 (2) Appeal. Court of Appeal may enter judg- ment for appellant instead of granting new trial. Court of Appeal equally divided. Cannot enter- tain original application to dismiss case for want of prosecution. S. C. J. Act, 1894 (57 & 58 Viet. c. 16 ), s. 1. Regulations as to appeals. Provisions as to appeal. 532 PRACTICE IN MATRIMONIAL SUITS. Appeal. Applications for leave to appeal. Rules of Divorce Court not exhaustive. Application to Court of Appeal for new trial ; practice. Must be by motion. Notice of motion. Notice of motion ; (4.) In matters of practice and procedure every appeal from a J udge shall be to the Court of Appeal. (5.) In all cases where there is a right of appeal to the High Court from any court or person, the appeal shall be heard and determined by a Divisional Court constituted as may be prescribed by Rules of Court; and the deter- mination thereof by the Divisional Court shall be final, unless leave to appeal is given by that court or by the Court of Appeal. (6.) An application for leave to appeal may be made ex parte or otherwise, as may be prescribed by Rules of Court. [The Rules of the Divorce Court are not exhaustive, and where they fail to meet any particular case the Court may follow the Rules of the Supreme Court, notwithstanding the provision of Ord. LX VIII. r. 1, that they shall not affect proceedings in matrimonial causes, &c.: Giles v. Giles, (1900) P. 17; 69 L. J. P. 26; 81 L. T. 823.] It may be taken that the practice with respect to appli- cation to the Court of Appeal for a new trial of a matri- monial cause is now entirely regulated by the Rules of the Supreme Court, Ord. XXXIX. rr. 3, 4, 5 and 7. By rule 3, “ Every application for a new trial shall be by notice of motion, and no rule nisi , order to show cause,, or formal proceeding other than such notice of motion shall be made or taken. The notice shall state the grounds of the application, and whether all or part only of the verdict or findings is complained of.” The notice of motion for a new trial should, it is sub- mitted, be in the same form as a notice of motion for a rehearing (Form 106), substituting the words “ new trial ” for “rehearing,” and “Court of Appeal” for “Divi- sional Court.” By rule 4, “ The notice of motion shall be a fourteen days’ notice, and shall be served within the times follow- APPEAL. 533 Ing: viz., if the trial has taken place in London or Middlesex within eight days after the trial.” [As all matrimonial causes are tried in London, the notice must in every case he served within eight days of the trial . ] “ The time of the vacations shall not be reckoned in the computation of the time for serving the notice of motion.” By rule 5, “ The notice may be amended at any time by leave of the Court or a judge on such terms as the Court or judge may think just.” And by rule 7, “ A new trial may be ordered on any question, whatever be the grounds for the new trial, with- out interfering with the finding or decision upon any other question.” The following form is given in the Appendix to the authorized edition of the Buies and Orders of the Divorce Court amongst “ Forms which are to be followed as nearly as the circumstances of the case will allow.” It is given here without comment. Form 107. Appeal. I, A. B., the petitioner (or C. D., the solicitor of A. B. the petitioner), in a suit lately depending in the Probate, Divorce and Admiralty Division of the High Court of J ustice, entitled A. B. against C. B. and B. S., do hereby, in due time and place, complain of and appeal against a certain order or decree made in the said cause by the right honourable the President of the said Division on the day of , 19 , whereby, amongst other things, the said President did order and decree [Here set forth the whole of the decree , or such part of it as may he appealed against.'] (Signed) A. B. or C. D. Appeal. time for service. Amending notice of motion. New trial may be ordered on any question without affecting rest of judgment. Appeal, form of. 534 PRACTICE IN MATRIMONIAL SUITS. Appeal. Notice of appeal, form of. Notice by respondent in lieu of cross appeal. This instrument of appeal was lodged in the Divorce Registry of the Probate, Divorce and Admiralty Division of the High Court of Justice, this day of 19 . [To. be signed by a clerk: in the registry .] Perhaps, together with a notice in the following form, the above might constitute a more satisfactory form of notice under Ord. XXXIX. r. 3, than Form 106. Dear Sirs, Form 108. Notice of Appeal. 225, Coleman Street, E.C., October 16, 1911. A. B. v. C. B. and R. S. Please take notice that I have to-day duly lodged and filed the necessary documents (whereof I send you copies herewith) for the purpose of appealing to the Court of Appeal on behalf of the petitioner in the above cause. Truly yours, B. & J. To Messrs. W. W. & Co., 66, Frederick’s Place, Old Jewry, E.C. By Order LVIII. rule 6, “It shall not, under any cir- cumstances, be necessary for a respondent to give notice of motion by way of cross appeal, but if a respondent intends, upon the hearing of the appeal, to contend that the deci- sion of the Court below should be varied, he shall within the time specified in the next rule, or such time as may be prescribed by special order, give notice of such intention to any parties who may be affected by such contention. The omission to give such notice shall not diminish the powers conferred by the Act upon the Court of Appeal, but may, in the discretion of the Court, be ground for an APPEAL. 535 adjournment of the appeal or for a special order as to costs.’’ And by rule 7 such notice is to be an eight days’ notice in the case of an appeal from a final judgment, and two days’ notice in the case of an appeal from an interlocutory order. [When a respondent has given notice under the above rule, and the appellant subsequently withdraws his appeal, such notice should be treated as a cross appeal to the extent that on the original notice of appeal being withdrawn by the appellant the respondent should have the right to elect whether to persevere with or withdraw the cross appeal. If the respondent elect to adopt the former course, then the appellant shall have the right to give a cross notice, stating that he intends to bring forward the subject-matter of his original notice of appeal on the hearing of the respondent’s appeal: The Beeswing (1885), 10 P. D. 18; 54 L. J. P. 7; 51 L. T. 883.] By Order LVIII. r. 15, “ . . . .no appeal to the Court of Appeal from any interlocutory order, or from any order, whether final or interlocutory, in any matter not being an action, shall be brought after the expira- tion of fourteen days, and no other appeal shall be brought after the expiration of three months. The said respective periods shall be calculated, in the case of an appeal from an order in chambers, from the time when such order was pronounced, or when the appellant first had notice thereof, and in all other cases, from the time at which the judg- ment or order is signed, entered, or otherwise perfected, or, in the case of the refusal of an application, from the date of such refusal. . . .” The appellant must leave at the Divorce Registry three office copies of the order from which it is desired to appeal, with three notices of appeal. The appeal is then entered in a book kept at the Divorce Registry, and a copy of the entry forwarded to the proper officer of the High Court, who is responsible for the lists of appeals. Appeal. Time for such notice. Right of respondent to continue cross appeal. Right of original appellant to give cross notice. Time for appeal. Practice ; documents to be left at registry. 536 PRACTICE IN MATRIMONIAL SUITS. Appeal. Fees. Costs allowed. Practice at Royal Courts. Searching in Room 136. Documents to be left by solicitor at Royal Courts. Appeals from justices. Practice, Ord. LIX. r. 4a. FEES. Entering appeal . For judgment Filing notice £ s. d. .200 .10 0 .026 [For costs allowed on taxation, see post, pp. 540 — 603.] When the notice of appeal has been sent from the Divorce Registry to the Royal Courts of Justice, the pro- ceedings are continued there, and practitioners will do well to inquire of the clerk of the Court of Appeal what course they should pursue. They will be treated with the utmost courtesy and every possible information will be given them. A book containing entries of the various appeals is kept at the Royal Courts, Roomi 136, and it is only by searching this book and by constant inquiry that solicitors can ascer- tain when their appeals are likely to come on. Solicitors must supply the Court with notice of the application, and a copy of the order or decree appealed from. If there are any pleadings, copies of these should be supplied to the clerks to the Lords Justices. By sect. 11 of the Summary Jurisdiction (Married Women) Act, 1895 ( ante , p. 215), an appeal is given from the decisions of magistrates under the Act to the Probate, Divorce, and Admiralty Division. [$ee this Act in full, and on this subject generally, Part I., Chap. XIV., ante, pp. 212—222.] By the Mat. C. Act, 1878, s. 4, repealed by the above Act, an appeal was also given to a Divisional Court of the Probate, Divorce, and Admiralty Division, and the prac- tice regulating such appeals has been followed since the passing of the Act of 1895. By Order LIX. r. 4a, “Appeals from orders made under sect. 4 of the Matrimonial Causes Act, 1878, shall be heard by a Divisional Court of the Probate, Divorce, j APPEAL. 537 and Admiralty Division. Rules 7, 8, 10, 11, 12, and 16 of this Order shall apply to such appeals, the words ‘ Divorce Registry ’ being deemed to be substituted in rule 11 for the words ‘Crown Office Department of the Central Office.’ ” By rule 7, “ On any motion by way of appeal from an inferior Court, the Court to which any 'such appeal may be brought shall have power to draw all inferences of fact which might have been drawn in the Court below, and to give any judgment and make any order which ought to have been made. No such motion shall succeed on the ground merely of misdirection or improper reception or rejection of evidence, unless, in the opinion of the Court, substantial wrong or miscarriage has been thereby occa- sioned in the Court below.” [On appeal from justices, the Divisional Court has power, under Ord. LIX. rr. 4a and 7, to make a fresh order: Brown v. Brown (1898), 79 L. T. 102.] By rule 8, “ On any motion by way of an appeal from an inferior Court, the Court to which any such appeal may be brought shall have power, if the notes of the J udge of such inferior Court are not produced, to hear and determine such appeal upon any other evidence or state- ment of what occurred before such Judge which the Court may deem sufficient.” [On appeal from justices, two copies of the notes of evi- dence should be sent for the use of the Court: Walton v. Walton, (1900) P. 147; 69 L. J. P. 54; 82 L. T. 627. For the decisions of the Court as to the duty of the magistrate 1 s clerk to supply copies of the depositions to the Court above, see ante, p. 221.] By rule 10, “ Every such appeal shall be by notice of motion, and no rule nisi or order to show cause shall be necessary. The notice of motion shall state the grounds of the appeal, and whether all or part only of the judg- ment, order, or finding is complained of. The notice of Appeal. Ord. LIX. r. 7. Power of Court to draw inferences of fact and make any order. From justices ; practice. Ibid. r. 8. Evidence from Court below. Two copies of depositions to be supplied for use of Divisional Court. Ibid. r. 10. Appeal must be by notice of motion. 538 PRACTICE IN MATRIMONIAL SUITS. Appeal. Ord. LIX. r. 11. Appeal to be entered at Divorce Registry. Ibid. r. 12. Service of notice of motion. Ibid. r. 16. Power to extend time for appeal. Notice of motion must state grounds of appeal. Documents to be filed. Fees. motion shall be an eight days’ notice, and shall be served on every party directly affected by the appeal entered.” By rule 11, “Every appeal shall be entered at the Crown Office Department of the Central Office, and the entry shall be made by lodging a copy of the notice.” [ For the words “ Crown Office Department ” read “ Divorce Registry .” See rule 4 a, supra.] By rule 12, “ The notice of motion shall be served, and the appeal entered within twenty-one days from the date of the judgment, order, or finding complained of; such period shall be calculated from the time at which the judgment or order is signed, entered, or otherwise per- fected, or from the time at which the finding or any refusal is made or given.” And by rule 16, “ The High Court shall have power to extend the time for appealing, or to amend the grounds of appeal, or to make any other order, on such terms as the Court shall think just, to ensure the determination on the merits of the real questions in controversy between the parties.” The notice of motion must state the grounds of the appeal, and whether all or part only of the justices’ order is appealed against. It must appear on the face of it to be an eight days’ notice. File a copy of this notice in the Divorce Registry, and with it any affidavits it is proposed to use, and two copies of the depositions. FEES. Filing notice Each affidavit £ s. d. 0 2 6 0 2 6 Order of justices to be left in Divorce Registry. Copy of notice y should be filed Two copies of the order appealed against, one of which at least must be certified, should also be left at the Divorce Registry. A copy of the notice should be filed in the Registry at APPEAL. 539 least four days before the sitting of the Divisional Court. This is generally on the first Tuesday in every month; but due notice of such sittings is always given. The notice of motion must be served on every party directly affected by the appeal. Copies of the affidavits filed in support should be given with the notice to the parties served in order that they may have the opportunity of answering them. The time for appeal may be extended by the Court. The following form of notice is suggested as a pre- cedent: — Form 109. Notice of Appeal from Justices. W. W. v. S. W. Appeal from an order of the Honble. J. De G., Metropolitan Police Magistrate, made on the day of ,19 Take notice that the Divisional Court of the Probate, Divorce, and Admiralty Division of His Majesty’s High Court of Justice will be moved on the day of , 19 , at 10.30 o’clock in the forenoon, or as soon after as counsel may be heard, by Mr. , of , counsel on behalf of the above-named W. W., by way of appeal from an order of the above-named metropolitan magis- trate, made on the day of ,19 , whereby the said W. W. was convicted of ( here state the offence of which the appellant was convicted ), and the said W. W. was ordered to ( set out terms of order ) . The grounds of appeal are as follows {state grounds of appeal). Dated, &c. To the petitioners, B. & J., 225, Coleman Street, E.C., Solicitors for the above-named S. W. Appeal. in registry at least four days before sitting of Divisional Court. Notice of motion; on whom served. Copies of affi- davits should be delivered in good time to opposite side.j Time for appeal may be extended. Suggested form of notice. Notice of appeal, form of. 540 PRACTICE IN MATRIMONIAL SUITS. Practice as to Costs. COSTS. Practice as to. \_For the 'principles on which costs are allowed and dis- allowed by the Court and for the reported decisions on the subject , see Part 1., Chap. XVI., ante, pp. 228 — 250.] 20 & 21 Viet, c. 85, s. 51. Powers of Court as to costs. Order unduly- obtained. Ibid. s. 34. Power to condemn co-respondent in costs. Co-respon- dent applying for security where peti- tioner abroad. By sect. 51 of the Matrimonial Causes Act, 1857, “ The Court, on the hearing of any suit, proceeding, or petition 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.” By rule 116, “ If an order be obtained on motion with- out due notice to the opposite parties, such order will be rescinded on the application of the parties upon whom the notice should have been served; and the expense of and arising from 1 the rescinding of such order shall fall on the party who obtained it, unless the Judge shall other- wise direct.” By sect. 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 estab- lished, it shall be lawful for the Court to order the adulterer to pay the whole or any part of the costs of the proceedings.” [Eor a case where an application by a co-respondent that the petitioner be ordered to give security for his costs was made and refused, see Redfern v. Redfern, Herbert and others (1890), 63 L. T. 780.] Ibid. s. 54. Power of Court to fix By sect. 54, “ The Court shall have full power to fix and regulate from time to time the fees payable upon all COSTS. 541 proceedings before it; all which fees shall be received 1 , paid, and applied as herein directed: Provided always, that the said Court may make such rules and regulations as it may deem necessary and expedient for enabling persons to sue in the said Court in forma pauperis” \_For the rules and 'practice as to suing in forma pauperis, see ante, pp. 389 — 395.] By sect. 13 of the Matrimonial Causes Act, 1858, “ The bill of any . . . solicitor, for any fees, charges, or dis- bursements in respect of 1 any business transacted in the Court for Divorce and Matrimonial Causes, and whether the same was transacted before the full Court or before the J udge Ordinary, shall, as well between . . . solicitor and client, as between party and party, be subject to taxation by any one of the registrars belonging to the principal registry of the Court of Probate; and the mode in which any such bill shall be referred for taxation, and by whom the costs of' taxation shall be paid, shall be regulated by the rules and orders to be made under the Act of the twentieth and twenty-first of Victoria, chapter eighty-five; and the certificate of the registrar of the amount at which such bill is taxed shall be subject to appeal to the judge of the said Court.” By sect. 2 of 1 the Matrimonial Causes Act, 1878, “Where the Queen's Proctor or any other person shall intervene or show cause against a decree nisi in any suit or proceeding for divorce or for nullity of marriage, the Court may make such order as to the costs of the Queen’s Proctor, or of any other person who shall intervene pr show cause as aforesaid, or of all and every party or parties thereto, occasioned by such intervention or showing cause as aforesaid, as may seem just; and' the Queen’s Proctor, any other person as aforesaid, and such party or parties shall be entitled to recover such costs in like manner as in other cases: Provided that the Treasury may, if it Costs. and regulate fees. Mat. C. Act, 1858 (21 & 22 Viet. c. 108), s. 13. Solicitors’ bills to be subject to taxation. Mat. C. Act, 1878 (41 & 42 Viet. c. 19), s. 2. Queen’s Proctor may- be condemned in costs. 542 PRACTICE IN MATRIMONIAL SUITS. Costs. Pauper petitioner neglecting to proceed. Respondents may be heard as to costs without answering. Wife’s costs to setting down for trial. Further order for wife’s costs. shall think fit, order any costs which the Queen’s Proctor shall, by any order of the Court made under this section, pay to the said party or parties, to be deemed to be part of the expenses of his office.” By rule 27, “ Where a husband admitted to sue as a pauper neglects to proceed in a cause, he may be called upon by summons to show cause why he should not pay costs, though he has not been dispaupered, and why all further proceedings should not be stayed until such costs be paid.” \For the 'practice in pauper causes, see ante, pp. 389 — 395. As to costs in pauper causes, see Richardson v. Richard- son and Plowman, (1895) P. 346; 64 L. J. P. 119; 73 L. T. 135; 11 R. 663.] By rule 50, “ Either of the respondents in the cause, after entering an appearance, without filing an answer to the petition in the principal cause, may be heard in respect of any question as to costs, and a respondent, who is husband or wife of the petitioner, may be heard also in respect to any question as to custody of children, but a respondent who may be so heard is not at liberty to bring in affidavits touching matters in issue in the principal cause, and no such affidavits can be read or made use of as evidence in the cause.” By rule 158, on entering a cause for trial, “ or in an earlier stage of a cause by order of the judge or of the registrars, to be obtained on summons, a wife who is petitioner, or has entered an appearance as respondent in a cause, 'may file her bill or bills of costs for taxation as against her husband, and the registrar to whom 1 such bills of costs are referred for taxation shall, when directions as to the 'mode of hearing or trial have been given (now when the cause ] is set 'down, motion for directions having been abolished), ascertain What is a sufficient sum of money to be paid into the registry, or what is a sufficient security to be given by the husband to cover the costs of the wife COSTS. 543 of and incidental to the hearing! of the cause; and shall thereupon issue an order 'upon the husband to pay or secure the said sum within a time to be fixed by the registrar;, provided that ( in case the husband should by reason of his wife having 'separate property, ior for other reasons, dis- pute her right to recover any costs pending suit against him, the registrar may suspend the order to pay the wife’s taxed costs, or to pay or secure the sum ascertained to be sufficient to cover her costs of and incidental to the hearing of the cause, for such length of time as shall seem to him necessary to enable the husband to obtain the decision of the Court as to his liability.” [See Sopwith v. Sopwith (1860), < 2 S. & T. 105; 29 Jj. J. P. 132; Glennie v. Glennie and Bowles (1863), 3 S. & T. 109; 32 L. J. P. 17; 7 L. T. 696; see post, p. 564; Gough v. Gough and Baynton (1864), 33 L. J. P. 136.] The wife s solicitor, in order that he may secure the full advantage of this rule, should take care always to have his bill ready for taxation at the earliest possible moment, which by the present practice is as soon jas the cause is set down for hearing or trial. He should also at the time of such taxation, apply to the registrar, under rule 158, to fix the amount to be paid into Court or secured to cover the costs of the hearing as, if not made then, the application may be overlooked 1 till it is too late. Where the wife’s defence is a simple denial of the adultery, she may be called upon to support her applica- tion by an affidavit or affidavits of herself 1 and her solicitor stating that her defence is bond fide. For it must be borne in mind that the registrar is not bound to order pay- ment of the wife’s costs taxed up to time of setting down for trial, but he can, if he thinks the circumstances of the case warrant him in doing so, order them to be paid into Court or secured, in the same manner as the further Costs. Further order for wife’s costs. Wife’s soli- citor should bring in bill of costs to setting down for hearing for taxation as soon as possible. Order to pay- or secure further amount should be applied for at same time. Where wife’s defence simple denial, may- be called on for affidavits as to bona Jides. Registrar not bound to order pay- ment of taxed costs to set- ting down for hearing. 544 PRACTICE IN MATRIMONIAL SUITS. Costs. amount fixed to cover the wife’s costs of the hearing. May order This course is commonly adopted when the husband, under “ to rule 158, disputes the wife’s right to recover any costs secure”: against him pending suit, and the registrar suspends the hu^and^dis- or< ^ er f° r payment of costs for a time in order that the putes liability under s. 158 may suspend order for pay- ment until decision of Court. Information to be supplied to registrar to enable him to fix amount to be paid or secured. husband may obtain the decision of the Court upon the matter . The wife’s solicitor must supply the registrar with all necessary information to enable him to estimate the prob- able cost of the trial, such as the length of the brief, the number of witnesses, the distance they will have to travel, their positions in life, that he miay estimate the proper amounts to allow them for expenses, and generally any other particulars that may be of importance. Order to pay into Court within seven days, or to give bond with two sureties for double the amount. Forty-eight hours’ notice as to sureties. Further order, application for, where expenses likely to be greater than anticipated. Long trial : application in Court for further order for wife’s costs. Service of copy of order, endorsement on. As soon as the a'mount is fixed the registrar orders it to be paid into Court within seven days, or that the husband give a bond, with two sureties, for double the amount. The husband must give the wife’s solicitor forty-eight hours’ notice who the sureties are to be, in order that he may satisfy himself as to their sufficiency and object to them, if he desires to do so. If it subsequently appears that the expenses of 1 the trial are likely to be heavier than was anticipated, a further order can be applied for. When a hearing or trial lasts longer than was antici- pated, the wife’s counsel applies to the judge for a further order, and, if 1 the application is granted, the registrar fixes the amount to be paid into Court until such f urther order . Fees, 10s. per hour or part of hour; order, 5s. A copy of the order must be served on the husband’s solicitor, or on the husband if he is conducting his case in person. This copy must be specially indorsed with a warning that the husband is liable to a writ of execution if the order is disobeyed. Enforcing order to pay or secure. \For the terms of such endorsement and for the manner in which the order is enforced , see post, title “ Enforcing Decrees and Orders p. 638.] COSTS. 545 Where the wife is the respondent the order operates at onoe as a stay of proceedings, and if through the negli- gence of the wife’s solicitor the cause is already in the list for hearing, it is mjarked as stayed in the cause list, and, if the order is not complied with within the time specified in it, the cause cannot come on for ten days after notice has been given to the clerk ,of the rules that it has been complied with. Where the wife is the petitioner, she can elect whether the order for her costs shall operate as a stay or not. But if she desires that the cause should be marked as stayed in the cause, she must say so at the time the order is made . Otherwise the application for a stay can only be made on summons . When it is desired to remove a stay, notice must he given to the clerk pf the rules, and such notice must state the date on which the order was complied with. The stay is then removed, and ten days after the date on which the order was complied with the cause comes on in its turn . The payment of' money into and out of Court in the Probate, Divorce, and Admiralty Division is now regu- lated by the Supreme Court Funds Buies, 1894. By rule 29, All funds to be paid into or deposited in Court (in the Probate, Divorce, and Admiralty Division) shall be paid or deposited at the Bank of 1 England (Law Courts Branch) .... foi the account of 1 the Paymaster- General for the time being, and on behalf of the Supreme Court of Judicature ” By rule 28, “ In the .... Probate, Divorce, and Admiralty Division, an order for the payment of money to be acted upon by the paymaster shall be in the Form No. 7 in the Appendix to these Buies, or as nearly as may be, and shall be signed by .... a registrar ” By rule 34, “ In the Probate, Divorce, and Admiralty Division, a lodgment of funds to the account of the pay- master shall be made upon presentation at the Bank (Law d.m.c. 35 Costs. Stay of proceedings. Where wife respondent. Ibid, wife petitioner. Removing stay. Funds in Court to be paid into Bank of England. Form of order. Lodgment in Court, authority to he signed by registrar. 546 PRACTICE IN MATRIMONIAL SUITS. Costs. Lodgment of funds in Court without personal attendance. Direction for payment by registrar. Authenti- cated copy of order to he left at pay office. Court has power to order husband to give security for wife’s costs Courts Branch) , 0 if an authority signed by or on behalf of a registrar. Such authority shall be issued upon a request signed by or on behalf of the person desiring to make such lodgment. The request shall specify the title of the cause or matter .... and any particulars of the lodg- ment. which may be necessary, and shall be in the Form No. 12 in the Appendix to these Buies.” By rule 33, “ A request or authority for the issue by the paymaster of a direction for the lodgment of funds in Court may be sent to the paymaster by post, and, if so desired by the person sending the same, the paymaster shall send such direction by post to the laddress specified by such person.” [ This rule enables a lodgment to be made without any personal attendance at the pay office , which was previously necessary. ] By rule 44, “ In the Probate, Divorce, and Admiralty Division, when money has been lodged to a security for costs account, under the provisions of rule 26 of Ord. XXXI. of the Buies of the Supreme Court, 1883, a direction for payment shall be issued by the paymaster upon receipt of a certificate or other authority of a regis- trar as to the person entitled to payment of the money so lodged.” By rule 46, “ A duly authenticated copy of every order in the .... Probate, Divorce, and Admiralty Division, which directs funds to be dealt with, shall be left at the pay office by or on behalf' of the person entitled to pay- ment or interested in any other dealings with such funds directed or authorized by the order, and shall be the pay- master’s authority for the issue of directions giving effect to such orders.” [. For fuller particulars of these Rules and Appendix , see “ The Annual Practice .” Notwithstanding words of sect. 26 of Matrimonial Causes Act, 1857, and construction thereof by Court of Appeal {In COSTS. 547 re Wingfield and Blew , (1904) 2 Ch. 665; 73 L. J. Oh. 797; 91 L. T. 783), the Divorce Court has power to order husband whose wife has obtained a separation order against him, to give security for her costs, for the purpose of enabling her to sue for dissolution against him: Sheppard v. Sheppard, (1905) P. 185; 74 L. J. P. 102; 93 L. T. 443.] Appendix to Supreme Court Funds Rules, 1894. Form No. 7. Order for Payment in Probate, Divorce, and Admiralty Division, referred to in Rule 28. High Court of J ustice, Probate, Divorce, and Admiralty Division. Title of cause, A. v. B. Ledger credit . No. of cause Date, 19 . The Paymaster-General is hereby directed to make the payments specified below, out of the money standing in his books to the credit of the above cause. Name of the Person to whom, and also of the Person (if any) upon whose authority payment is to be made. Particulars. Amount to be paid. Person to be paid. (Christian name to precede surname.) £ .9. d. [Total amount in words.'] [Signature.] Costs. in a suit for dissolution, though she has already obtained a separation order against him. Order for payment. 35 (2) 548 PRACTICE IN MATRIMONIAL SUITS. Costs. Request for lodgment. Authority for lodgment. Form 12. Request for Lodgment in Probate, Divorce, and Admiralty Division, referred to in Rule 34. High Court of J ustice, Probate, Divorce, and Admiralty Division. I. Request for Authority for Lodgment. Title of cause, A. v. B. Ledger credit . No . of cause To the registrar, I request authority for the lodgment of £ at the Bank of England, such lodgment being for* [* State here such particulars as may he required.] (i Signature .) II. Authority for, Lodgment. To the agent of the Bank of England (Law Courts Branch) . Please receive the above sum, and place it to the account of the Paymaster-General, for the time being, for and on behalf of the Supreme Court of' Judicature. Date, 19 . ( Signature .) III. Bank Certificate of Receipt. To the Assistant Paymaster-General. Bank of England, 19 The above-stated sum has been this day received. {Signature.) COSTS. 549 Form 14 (C). Costs. Certificate as to Person entitled to Money Lodged Security for Costs,” referred to in Rule 44. £ as Certificate as to person entitled to High Court of Justice, Probate, Divorce, and Admiralty Division. money lodged. Title of cause in which the money was first lodged A. v. B. No. of cause Ledger credit {if same as title i of cause, state “as above”). In pursuance of rule 44 of the Supreme Court Funds Rules, and rule 27a of Ord. XXXI. of the Rules of the Supreme Court, October, 1884, I certify that {name of person to be paid, and whether party or solicitor) is en- titled to the payment of the total sum of £ , lodged in Court in the above cause as under, by or on behalf of the petitioner {or respondent) to a security for costs account under rule 26 or Ord. XXXI. of the Rules of the Supreme Court, 1883, viz.: — On , 19 , £ On , 19 , £ Dated this day of , 19 {Signature of registrar.) N.B . — The person applying for payment may be re- quired to produce the receipt of the Bank of England for the lodgment of the amount. By rule 159, “ When on the hearing or trial of a cause the decision of the judge or the verdict of the jury is against the wife, no costs of the wife of and incidental to such hearing or trial shall be allowed as against the husband, except such as shall be applied for, and ordered to be allowed by the judge, at the time of such hearing or trial.” Costs of the ■wife must he asked for at the hearing. ["This rule applies to suits for judicial separation: Jones Rule 159 v < ~ J ones (1872), L. R. 2 P. & D. 333; 41 L. J. P. 53; 26 applies to 550 PRACTICE IN MATRIMONIAL SUITS. Costs. judicial separation. Application for wife’s costs after trial. Full costs, unsuccessful wife. Wife who is unsuccessful, if she obtains the order of the judge at the hearing or trial for amount of costs ordered to he paid into Court or secured can also obtain immediate pay- ment of such costs, subject to taxation. Except as above, no costs paid wife until after decree absolute. Counsel must ask for wife’s costs at hearing. “ Usual order ’ ’ for wife’s costs, what is. Amount estimated by registrar in excess of taxed costs. Husband entitled to balance. L. T. 106. In spite of the provisions of this rule, the Court has, under very special circumstances, entertained an appli- cation for a wife’s costs made after the time of hearing or trial: Somerville v. Somerville and Webb (1867), 36 L. J. P. 87; 16 L. T. 466. As to asking for unsuccessful wife’s full costs of trial, see Smith v. Smith, Major, Child and Rabett (1877), 7 P. D. 84; 51 L. J. P. 31; 46 L. T. 696; Robertson v. Robertson (1876), 6 P. D. 119; 51 L. J. P. 5; 45 L. T. 237; see post, p. 564.] And by the latter part of rule 201, “ a wife who is un- successful in a cause, and who at the hearing of the cause has, in pursuance of rule 159, obtained an order of the judge that her costs of and incidental to the hearing or trial of the cause shall be allowed against her husband to the extent of the sum paid or secured by him to cover such costs, may . . . proceed at once to obtain payment of such costs, after allowance thereof on taxation.’’ [ For this rule in full, see post, p. 562.] Except as above, persons condemned in costs are not obliged to pay until after decree absolute. Solicitors must therefore see that counsel ask for the wife’s costs at the hearing, where she is unsuccessful. The ordinary practice is for counsel to ask for “ the usual order for the wife’s costs.” Such usual order is that the amount paid in or secured is ordered to be paid out, after deducting any sum or sums that may be taxed oh by the registrar. This simply means that if the amount estimated by the registrar at the time of setting 1 down for hearing is actually more than the wife’s full costs would have amounted to had she been successful, the husband is entitled to the benefit of any balance there may be. But this happens comparatively rarely, for as a rule the amount fixed by the registrar is rather under than over the mark ; therefore the husband’s solicitors frequently agree to the amount of the costs as estimated, and taxation is dispensed with . COSTS. 551 Sometimes, under special circumstances, the full costs, Costs, or at all events an amount larger than the amount paid Amount into Court and secured is asked for at the hearing or trial, amounted and obtained. (See Smith v. Smith, Major, Child, and in or secured, Rabett (1877), 7 P. D. 84; 51 L. J. P. 31; 46 L. T. tri^d^ 696; see post, p. 564; Robertson v. Robertson (1876), 6 obtained. P. D. 119; 51 L. J. P. 5; 45 L. T. 237.) In any case the order for costs forms part of the decree Order for . . ^ costs forms • part of decree Where the wife succeeds, the decree simply condemns nisi * the husband in her costs, which are duly taxed, and the SUCC essful. order for payment specifies the mode in which such pay- ment is to be made. The usual practice is to order the Practice as to amount estimated by the registrar, which has already been co^ ent ° paid into Court or secured, to be paid out at once to the wife, and such further amount as may be allowed her to be paid into Court or secured until the decree has been made absolute. [Where a jury disagreed, the Court gave the wife her full Jury costs over and above the amount deposited in Court: Hurley v. Hurley and Menzies, (1891) P. 367; 61 L. J. P. 14; 65 wif^her^full L. T. 353.] costs. 'The Court can, if it thinks right, refuse to give the wife No appeal any costs at all, and there is no appeal against its decision. rSuTidof Court to give [$ee ante, p. 526.] wife costs. Amount If after taxation of the wife’s costs it turns out that the estimated in . . . „ . excess of amount estimated by the registrar is m excess or the wife’s costs; amount allowed on taxation, the husband is not entitled gnthfed^o 01 to have the balance refunded to him until after decree receive absolute, except by consent. balance until after decree If the husband chooses to pay the wife’s taxed costs he can do so, and then take out a summons to show cause consent. why the amount paid into Court should not be paid out to ^^ining him. Or the wife’s solicitor can, after taxation, obtain payment of the order for payment out of the fund in Court. husband 7 552 PRACTICE IN MATRIMONIAL SUITS. Costs. Summons for payment of wife’s costs and bond for further amount, form of. Wife’s costs of commission to examine witnesses. Ibid. Form 110. Summons for Payment of Wife’s Costs already incurred, and for Depositing Bond for such further Amount as ordered by Registrar. [ Heading in Cause . ] To show cause why the petitioner should not, within a week from the service of the order to be made upon this summons, pay or cause to be paid to the respondent’s solicitor, R. C. T., the sum of £ , being the amount of the taxed costs incurred on behalf of 1 the respondent to the present time in this suit; and also why the petitioner should not pay or cause to be paid into the Divorce Registry of the said Division, or give security for the sum of £ , being the sum reported by X. Y., Esquire, one of the registrars of the said Division, to be sufficient to answer the expenses of the respondent, of and incident to the hearing of this cause, together with the costs of this summons . By rule 137, “ In case a husband or wife shall apply for and obtain an order or a commission or requisition for the examination of witnesses, the wife shall be at liberty, without any special order for that purpose, to apply by summons to one of the registrars to ascertain and report to the Court what is a sufficient sum of money to be paid or secured to the wife to cover her expenses in attending at the examination of such witnesses in pursuance of such order, or in virtue of such commission or requisition, and such sum of money shall be paid or secured before such order or such commission or requisition shall issue from the registry, unless the judge or one of the registrars in his absence shall otherwise direct.” By rule 198, “ The registrar to whom a commission or requisition for examination of witnesses is referred for settlement, on application on behalf of the wife, may pro- ceed at once and without summons to ascertain what is a sufficient sum of money to be paid or secured to her to cover her expenses in attending at the examination of such COSTS. 553 witnesses, and shall thereupon issue an order upon the husband to pay or secure the said sum within a time to be fixed in such order.” [See Baily v. Baily and Della Bocca (1860), 2 S. & T. 112; 30 L. J. P. 47. See post , p. 564. These two rules must, of course, he read together . ] By rule 103, in cases of petitions for maintenance or variation of settlements by rule, “ The costs of a wife of and arising from the said petition or answer shall not be allowed on taxation of costs against the husband before the final decree in the principal cause without direction of the judge.” By rule 199, “ The bond taken to secure the costs of a wife of and incidental to the hearing of a cause shall be filed in the registry of the Court of Probate, and shall not be delivered out or be sued upon without the order of the Court.” The bond is prepared by the husband’s solicitor and sent for approval to the wife’s solicitor, who is supposed to return it approved within two days. The bond is then engrossed on paper , not parchment , and duly executed. The approval of the other side is then endorsed upon it. The registrar’s minute for filing is drawn up by the solicitor filing it. The following two forms are taken from the Appendix to the Official Copy of the Buies and Orders: — Form 111. Official Form of Bond for securing Wife’s Costs in Amended Rules, 1875. Know all men by these presents, that we, A. B., of, &c., G. H., of, &c., and K. L., of, &c., are held and firmly bound unto X. Y., of , the proctor or solicitor for , of , in the penal sum of £200 of good and lawful money of Great Britain, to be paid to the said X. Y., and for which payment to be well and truly made we bind ourselves and each of us for the whole, our heirs, Costs. Wife’s costs of petition for variation of settlements or main- tenance. Bond to secure wife’s costs. Bond and registrar’s minute, how prepared, wife’s solicitor approving. Securing wife’s costs. Bond for, form of. 554 PRACTICE IN MATRIMONIAL SUITS. Costs. Ibid . Penalty. executors, or administrators, firmly by these presents. Sealed with our seals. Dated the day of , in the year of our Lord one thousand nine hundred and eleven. Whereas a certain cause is now depending in the Pro- bate, Divorce, and Admiralty Division of the High Court of Justice between the said A. B., petitioner, of the one part, and the ( said O. D., respondent, and It. S., co-respon- dent, of the other part. And whereas by an order made in the said cause, it was ordered that the said A. B., the peti- tioner ( or the said 0. D., the respondent), should within days from the service thereof pay or cause to be paid into the Divorce Registry of the said Division the sum of £100 to cover the costs of the said respondent (or petitioner) of jand incidental to the hearing of the said cause or file in the said registry a bond under the hand and seal of the said A . B . , and of two sufficient sureties in the penal sum of £200, conditioned for the payment of such costs of the said C. D. as shall be certified to be due and payable by the said A. B., not exceeding the sum of £100, as security for the costs aforesaid. Now the con- dition of this obligation is such that if the above-bounden A. B., his heirs, executors, or administrators, shall well and truly pay or cause to be paid to the above-named X. Y., his heirs, executors, administrators, or assigns, the full sum of £100 of good and lawful money of Great Britain, or the lawful costs of the said C. D., the respon- dent (or petitioner), of and incidental to the hearing and trial of this cause to the extent of £100, then this obliga- tion is to be void and of none effect, otherwise to remain in full force and virtue. Sealed and delivered by the said A. B. (l.s.) A. B., G. H., and K. L., in G. H. (l.s.) the presence of of . K. L. (l.s.) [ One attesting witness . ] [. Penalty of bond double amount ordered to be paid into Court or secured.'] COSTS. 555 Form 112. Registrar’s Minute on Deposit of Bond of Security for Wife’s Costs. [. Reading in Cause.] The day of , 19 . Messrs. , of , in the county of , the soli- citors for the petitioner (or respondent), referring to the order of the President of this Court made in this cause, and hearing date the day of , 19 , whereby it was ordered that the petitioner (or respondent) do pay into the Divorce Registry of the Probate, Divorce, and Admiralty Division of His Majesty’s High Court of Justice, such sum as may be reported sufficient by one of the registrars of the said Court to cover the expenses of the said respondent (or petitioner) of preparing for and On the trial of 1 this cause, or give such security for the salid expenses as the said registrar might deem sufficient, brought into and filed in the registry of 1 the said Court a bond under the hands and seals of the said petitioner (or respondent) and ,of two sureties in the penal sum of £ , the sum being the amount of the security re- ported by , Esquire, one of the registrars of the said Court, sufficient to cover the payment of such expenses of the said respondent (or petitioner) as shall be certified to be due and payable, the said report bearing date the day of , 19 X. Y., Registrar. The bond and the minute, when signed by the registrar, are filed by the husband’s solicitor in the registry, who should give notice to the wife’s solicitor that he has done so. Where the wife’s solicitor returns the bond without either approving or disapproving, or fails to return it within the two days required by the practice of the registry, the husband files in the registry a certificate that he has Costs. Registrar’s minute of bond for wife’s costs, form of. Filing bond and minute. Wife’s solici- tor returning bond without approving or disapproving, or neglecting] 556 PRACTICE IN MATRIMONIAL SUITS. Costs. to return bond within two days. Two days’ notice to wife’s soli- citor of names and addresses of proposed sureties. Notice of sureties to wife’s bond, form of. Wife’s solicitor dis- approving- bond. Affidavit of justification by sureties, form of. duly delivered the draft bond, and then files the bond and registrar’s 'minute as above. Besides delivering the draft bond, the husband’s soli- citor should give two days’ notice to the “wife’s solicitor of the names and addresses of the persons he proposes as sureties to the bond . Such notice may be more or less in the following form 1 : — Form 113. Notice of Sureties to Wife’s Bond. [ Heading in Caus i e.'] To Messrs. W. W. & Co., of 66, Frederick’s Place, Old Jewry, E.C., the respondent’s solicitors. Take notice that we tender E. F., of , in the county of , innkeeper, and J. K., of , in the county of , farmer, ias sureties on behalf of the petitioner for the sum of £ , to answer the respon- dent’s costs of and incident to the hearing of this cause. B. and J., 225, Coleman Street, E.C., Petitioner’s solicitors. September 3rd, 19 If the wife’s solicitor disapproves of the proposed bond, the husband’s solicitor should file in the Divorce Registry an affidavit, more or less in the following form: — Form 114. Affidavit of Justification of Sureties. [Heading in Cause.] I, E. F., of , in the county of , make oath and say — 1. That I live at aforesaid. 2. That I am willing to become one of the sureties for the said A. B., for payment of the costs of the COSTS. 557 said C. B., which have been incurred or are being incurred in this suit. 3. That I am worth more than £ after all my just debts are paid. Sworn, &c. Each of the sureties having duly sworn an affidavit in the above form (or a joint affidavit of both sureties to the same effect ), the husband’s solicitor should obtain the registrar’s signature to the minute, which with the bond and the above affidavits or affidavit should be duly filed in the registry. If the wife’s solicitor still objects to the proposed security he must take out a summons for the examination of the sureties ;as to their means. If' an order is made on this summons, an appointment must be obtained for the examination and cross-examination of the sureties on oath . Against the decision of the registrar an appeal of course lies to the judge in chambers. [ For the manner of enforcing the bond for the wife's costs , see post, title “ Enforcing Decrees and Orders,” p. 638.] When the costs are paid, the husband’s solicitor takes out a summons to show cause why the bond should not be cancelled and given out. But this is generally done by consent. Form 115. Registrar’s Minute on Cancelling Bond for Wife’s Costs. [ Reading in Cause.] On , the day of , 19 , before the undersigned registrar of the Probate, Divorce, and Admiralty Division of His Majesty’s High Court of Justice: Referring to the order of the President of this Court, made in this cause on summons and by consent, and bear- ing date the day of , 19 , whereby it was Costs. Ibid, to be filed in registry, with bond and minute. Wife’s solicitor still objecting to bond; exami- nation of sureties on oath as to means. Appeal from, registrar to judge. Enforcing bond. Cancelling bond. Registrar’s, minute on cancelling bond. 558 PRACTICE IN MATRIMONIAL SUITS. Costs. Receipt for bond. Change of solicitor. Ibid. Present practice as to. Riling notice. Delivery of papers. ordered that the bond given herein by the petitioner and his sureties as security for the respondent’s costs in this cause be cancelled, the same having been satisfied: The undersigned registrar of the principal registry of the Probate, Divorce, and Admiralty Division of His Majesty’s High Court of Justice, having been attended by the solicitor for the petitioner, and acting in pursuance of the aforesaid order, cancelled the said bond and directed this minute cancelling the same to be entered in the Court books and filed. , 19 X. Y., Registrar . [ A receipt is given for the bond: fee 2s. 6c?.] By rule 127, “ A party may obtain an order to change his or her .... solicitor upon application by summons to the registrar.” And by rule 128, “In case the former solicitor neglects to file his bill of costs for taxation at the time required by the order served upon him, the party may, with the sanction and by order of the judge or of the registrars, proceed in the cause by the new proctor, solicitor, or attorney, with- out previous payment of such costs.” The above (omitting unnecessary words) are rules 127, 128, ;as they still stand, apparently unrepealed. The practice, however, which has prevailed for some years is that any party to a cause shall be at liberty to change his or her solicitor, without an order for that purpose, upon notice of such change, containing an address for service of pleadings and other instruments within three miles of the General Post Office, being filed in the registry, but until such notice is filed and a copy thereof served on the other parties in the cause, the former solicitor shall be considered 1 the solicitor of the party. The usual filing fee, 2s. 6 d., is paid on filing this notice, and any application necessary for delivery of papers must be made by summons. COSTS. 559 Any form of notice, provided it is clear, will suffice. The following form is only a suggestion: — Form 116. Notice of Change of Solicitors. Take notice, that we, the undersigned, have been ap- pointed to act as solicitors for the petitioner {or respon- dent, or i os the erne may he) in 'the above cause, in the place of A . B., who has ceased to act for the said petitioner {or i as the case may be ) ; or, “in the place of A. B., now deceased.” or, “in the place of A. B., who has retired from 1 business, and whose business has been transferred and assigned to us;” “ to act for the petitioner {or as the case may he), who, having [entered an appearance in person, desires now to be represented by a solicitor.” (Signed) W. W. & Co., 66, Frederick’s Place, Old Jewry, E.C. To the Divorce Registrars of the Probate, Divorce, and Admiralty Division. A copy of the notice should be sent to the solicitors for the opposite party or parties, or to such parties themselves if they happen to be conducting their cases in person. The outgoing solicitor can file his bill for taxation without an order . Where the outgoing solicitor is acting for the wife, the wife’s costs are taxed as between party and' party and also as between solicitor and client, the husband being only liable for such costs (at all events, in the Divorce Court) as between party and party. [For fees and costs allowed on taxation, see post, pp. 540 —603.] Costs. Notice of change of solicitors, form of. Former solicitor dead. Hid. retired from business. For party previously “ in person.” Copy notice to he sent to opposite party. Outgoing solicitor files bill of costs without order. Ibid, acting for wife. 560 PRACTICE IN MATRIMONIAL SUITS. Costs. Taxation of bills of costs. Appointment for taxation. Early appointment for taxation. Notice of appointment. Notice to other side and copy bill. By rule 151, “ All bills of costs are referred to the registrars of the principal registry of the Court of Probate for taxation, and !may be taxed by them, without any special order for that purpose. Such bills are to be filed in the registry.” [ This rule applies only to bills in divorce proceedings. Sometimes bills are referred to the registrars from other Courts, in which case they are not filed, only left in the registry. ] By rule 177, “ In all cases in which the Court at the hearing of a cause condemns any party to the suit in costs, the solicitor of the party to whom such costs are to be paid may forthwith file his bill of costs in the registry, and obtain an appointment for the taxation, provided that such taxation shall not take place before the time allowed for moving for a new trial or re-hearing shall have expired; or, in case a rule nisi should have been granted, until the rule is disposed of, unless the judge shall, for cause shown, direct a more speedy taxation.” \_Early appointments for taxation are sometimes given in urgent cases , but only for good and weighty reasons .] By rule 152, “ Notice of the time appointed for taxation will be forwarded to the party filing the bill at the address furnished by such party.” [ The notice of appointment is drawn up in the registry and states the day and hour of taxation . ] By rule 153, “ The party who has obtained an appoint- ment to tax a bill of costs shall give the other party or parties to be heard on the taxation thereof at least one clear day’s notice of such appointment, and shall at or before the same time deliver to him or them a copy of the bill to be taxed.” [/£ is always better to give a longer notice, if possible .] COSTS. 561 By rule 154, “ When an appointment has been made by a registrar of’ the Court of Probate for taxing any bill of costs, and any parties to be heard on the taxation do not attend at the time appointed, the registrar may never- theless proceed to tax the bill after the expiration of a quarter of an hour, upon being satisfied by affidavit that the parties not in attendance had due notice of the time appointed.” By rule 155, “ The bill of costs of any solicitor will be taxed on his application as against his client, after suffi- cient notice given to the person or persons liable for the payment thereof, or on the application of such person or persons, after sufficient notice given to the practitioner.” By rule 156, “ The fees payable on the taxation of any bill of costs shall be paid by the party on whose applica- tion the bill is taxed, and shall be allowed as part of such bill; but if more than one-sixth of the amount of any bill of costs taxed as between practitioner and client is dis- allowed on the taxation thereof, no costs incurred in such taxation shall be allowed as part of' such bill.” By rule 200, “ If more than one-sixth of the amount of any bill of costs, taxed as between practitioner and client, is disallowed on taxation thereof, the party on whose application the bill is taxed shall be at liberty to deduct the costs incurred by him in the taxation from the amount of the bill as taxed, if so much remains due, otherwise the same shall be paid by the practitioner to the person on whose application the bill is taxed.” [ These two rules must, of course, be read together; for fees and costs, see post, pp. 566 — 603.] By rule 157, “If an order for payment of costs is required, the same may be obtained by summons on the amount of such costs being certified by the registrar.” [$ee also rules 178, 179 and 201.] Costs. Parties not attending. Taxing between solicitor aijd client. Fees, by whom paid. If one-sixth disallowed. Amending R. 156. As to cases where one- sixth of bill taxed off. Fees. Order for payment. D.M.C. 36 562 PRACTICE IN MATRIMONIAL SUITS. Costs. Ibid. Ibid. Order to pay, when made before decree absolute. Stay. When petition dismissed. Mat. C. Act, 1884. By rule 178, “Upon the registrar’s certificate of costs being signed, he shall at once issue an order of the Court for payment of the amount within seven days.” By rule 179, “ This order shall be served on the solicitor of the party liable [or, if it is desired to enforce the order by attachment, on the party himself], and if the costs be not paid within the seven days a writ of fieri facias or writ of sequestration shall be issued as of course in the registry, upon an affidavit of service of the order and non-payment.” [/See post, title “ Enforcing Orders p. 638.] By rule 201, “ The order for payment of costs of suit, in which a respondent or co-respondent has been con- demned by a decree nisi, shall, if applied for before the decree nisi is made absolute, direct the payment thereof into the registry of the Court of Probate, and such costs shall not be paid out of the said registry to the party entitled to receive them under the decree nisi until the decree absolute has been obtained; but a wife who is unsuccessful in a cause, and who at the hearing of the cause has, in pursuance of rule 159, obtained an order of the judge that her costs of and incidental to the hearing or trial of the cause shall be allowed against her husband to the extent of the sum paid or secured by him to cover such costs, may nevertheless proceed at once to obtain pay- ment of such costs, after allowance thereof on taxation.” [ These four rules must be read together. If a stay of proceedings is desired, it can form part of the order .] By rule 193, “ When an order has been made for the dismissal of a petition on payment of costs, the cause will not be removed from the list of causes in the Court books without an order of one of the registrars, to obtain which it must be shown to his satisfaction that the costs have been paid.” Buies 214 and 215 were made to carry out the pro- COSTS. 563 visions as to alimony and maintenance of the Matrimonial Causes Act, 1884 (47 & 48 Viet. c. 68) (see cmtie, pp. 84 — 86), passed to amend the law as to restitution of conjugal rights, which confers special powers on the Court of making provision for a wdfe in these suits. [Rules 216, 217, 218, relate entirely to costs. See post, p. 566.] All particulars, such as vouchers by counsel, receipts for money out of pocket, &c., and all documents, such as briefs, &c., should be before the registrar to assist him in his taxation. After the taxation the parties can compare their copy bills with the taxed hill, agree the amount, and return the taxed bill to the registrar . A party objecting to the taxation should bring in a statement of the items objected to and leave it with the registrar. An appeal from the registrar lies by a sum- mons before the judge in chambers. No costs are allowed on taxation to a party ordered to give particulars, or for amending pleadings by striking* out charges after a summons for particulars, or generally for amending pleadings, even "where the facts necessitating the amendment were not within the knowledge of the party at the time the pleading was filed, except under very special circumstances. Bills of costs are not taxed by the registrars during the vacation, “ except under special circumstances to be stated in a written application addressed to them.” [But practitioners should hear in mind that “ retainers ” to counsel are still always allowed on taxation in matri- monial causes.'] The following reported decisions relate entirely to practice as to costs, and, on that ground, are given here instead of in Chap. XVI. {ante, Part I., pp. 228 — 250): — [The general principles on which costs are taxed against a husband are the same in matrimonial as in other causes: see 36 (2) Costs. Registrar should have full particu- lars of items before him at taxation. Solicitors agreeing amount of taxed costs. Objections to taxation, appeal to judge in chambers. Amounts usually dis- allowed. Taxation of. Retainers always allowed on taxation in matrimonial causes. Taxation, general principles of. 564 PRACTICE IN MATRIMONIAL SUITS. Costs. Solicitor should see sufficient amount fixed to cover wife’s costs of hearing. Solicitor should file bill for wife’s costs early. Nullity, costs of wife. Asking for full costs of guilty wife. Husband infant : taxing wife’s costs against guardian . Money paid in by husband for wife’s costs : primarily liable, though co- respondent con- demned in costs. Wife’s costs of commission to examine witness. Husband dying after paying in money for wife’s costs. Unfounded Suggate v. Suggate (1859), 1 S. & T. 497; Harding v. Harding and Lance (1862), 2 S. & T. 549; 31 L. J. P. 76; 6 L. T. 692; Hepworth v. Hepworth (1860), 30 L. J. P. 253; 3 L. T. 180. The solicitor should be careful to see that a sufficient amount is fixed by the registrar to meet her costs of hearing: see Sopwith v. Sopwith (1860), 2 S. & T. 105; 29 L. J. P. 132; Glennie v. Glennie and Bowles (1863), 3 S. & T. 109; 32 L. J. P. 17; 7 L. T. 696; Gough v. Gough and Baynton (1864), 33 L. J. P. 136. If the amount fixed is insufficient a summons should be taken out before the judge: Madan v. Madan and Be Thoren (1868), 18 L. T. 337. The solicitor must see that there is no undue delay in filing the wife’s costs of hearing for taxation, otherwise there may be a difficulty about security: Bridgman v. Bridgman and Puchrin (1869), 20 L. T. 87. The rule as to taxation of the wife’s costs up to trial is only applicable against a husband, not against a third person instituting a suit for nullity against both husband and wife: Wells v. Cottam (; falsely called Wells ) (1863), 3 S. & T. 364; 33 L. J. P. 72; 10 L. T. 138. On the subject of asking at the hearing for the full costs of a guilty wife, see Smith v. Smith, Major, Child and Rabett (1877), 7 P. D. 84; 51 L. J. P. 31; 46 L. T. 696; Robertson v. Robertson (1876), 6 P. D. 119; 51 L. J. P. 5; 45 L. T. 237. Where a husband is an infant, the wife has a right to tax her costs against his guardian: Beavan v. Beavan (1862), 2 S. & T. 652; 31 L. J. P. 166; 7 L. T. 435. Money paid into Court by a husband to meet his wife’s costs is primarily liable for such costs, although the co- respondent has been condemned in costs: Hall v. Hall (1864), 3 S. & T. 390; Evans v. Evans and Robinson (1859), 1 S. & T. 328; 28 L. J. P. 136. Where a commission for the examination of witnesses out of the jurisdiction is ordered, the registrar fixes a sum to be advanced by the husband, to cover the wife’s costs: Baily v. Baily and Della Rocca (1860), 2 S. & T. 112; 30 L. J. P. 47. Where the husband dies after having paid money into Court to meet the order for his wife’s costs but before the hearing, the wife can tax her costs against his executors: Hall v. Hall (1864), 3 S. & T. 390; and if, having paid money in as above, the husband dies after decree absolute, the wife can enforce the order for costs against his personal representative: Hawks v. Hawks and Fenwick (1876), 1 P. D. 137; 45 L. J. P. 41; 34 L. T. 659. Unfounded countercharges will be disallowed on taxa- COSTS. 565 tion: Wilson v. Wilson (1872), L. R. 2 P. & D. 435; 41 L. J. P. 74; 27 L. T. 351. The number of witnesses to be allowed on taxation is in the discretion of the registrar: Allen v. Allen and H'Arcy (1860), 2 S. & T. 107 ; 30 L. J. P. 9; 3 L. T. 480; and as to what witnesses should be allowed, see Allen v. Allen, supra; Finney v. Finney, 21 L. T. 597. The fees of counsel for advising on an answer which is special and not a mere traverse, and term refresher fees, will be allowed on taxation: Hepworth v. Hepworth (1861), 30 L. J. P. 253; Stoate v. Stoate (1861), 30 L. J. P. 214. The costs of a party’s appearance on a motion will not be allowed on taxation where such appearance is unnecessary, although he may have received notice to appear from the opposite side: Frebout v. Frebout and Penny (1861), 30 L. J. P. 214; see also Watts v. Watts (1861), 31 L. J. P. 29. Where an application should be made by summons, not motion; if made on motion, so much only of the costs as would have been incurred if it had been made on summons will be taxed against the husband: Higgs v. Higgs and Hopkins (1862), 32 L. J. P. 64. The proper mode of reviewing a taxation of costs is by filing objections and taking out a summons before the judge, to show cause why the taxation should not be reviewed; but the Court will not make an order, unless it appears that such taxation was wrong in principle: Cooke v. Cooke (1864), 3 S. & T. 374; 33 L. J. P. 79; 10 L. T. 141; see also Ogilvie v. Massey. A wife who has obtained a decree nisi with costs, is entitled to enforce payment of those costs from her husband, although the King’s Proctor may have intervened, without waiting for the result of such intervention: Gladstone v. Gladstone (1875), L. R. 3 P. & D. 260; 44 L. J. P. 46; 32 L. T. 404. The Court has power to condemn in costs a party cited in a proceeding under the Legitimacy Declaration Act, 1858, who is unsuccessful in his opposition: Bain v. Attorney -General (Usher intervening), (1892) P. 261; 61 L. J. P. 135; 67 L. T. 447.] Costs. charges, costs of, disallowed. Number of witnesses allowed, matter for registrar. Fees of counsel for advising on answer. Costs of appearance on motion. Application that should be made on summons improperly made on motion. Reviewing taxation of costs. Wife’s costs. King’s Proctor intervening. Party cited under Legi- timacy Act, 1858, may be condemned in costs. 566 PRACTICE IN MATRIMONIAL SUITS. Costs. The following pages are extracted from Johnson on Bills of Costs, second edition (London: Stevens & Sons, Limited, and Sweet & Maxwell, Limited, 1901), pages 611—648. RULES OF THE SUPREME COURT. ADDITIONAL RULES AND REGULATIONS IN DIVORCE AND MATRIMONIAL CAUSES. The following Rules shall come into operation on the 1st dag of January , 1886, and shall apply, so far as may be practicable , to all proceedings on or after that day. 216. In divorce and matrimonial causes solicitors shall be entitled to charge, and be allowed the fees set forth in the column headed “Lower Scale” in Appendix N. annexed to the Rules of the Supreme Court, 1883, so far as the same are applicable to such causes. 217. The fees set forth in the column headed “ Higher Scale” in the said Appendix N., so far as the same are applicable, may be allowed either generally in any divorce or matrimonial cause, or as to the costs of any particular application made or business done therein if on special grounds arising out of the nature or importance or the difficulty or urgency of the case, the Court, or a judge, shall at the trial or hearing or further consideration of such a cause, or at the hearing of any application therein, COSTS. 567 whether the cause shall or shall not be brought to trial or hearing or to further consideration (as the case may be), so order, or if the taxing registrar, under directions given to him for that purpose by the Court, or a judge, shall think that such allowance ought to be so made upon such special grounds as aforesaid. 218. Upon any reference to the taxing registrar to tax a bill of costs of a solicitor for the purpose of ascertaining the amount due to such solicitor in respect thereof, if such bill shall include charges for business done in any divorce or matrimonial cause, the taxing registrar may allow the fees set forth in the column “Higher Scale” in the said Appendix N., so far as the same are applicable in respect of such cause, or in respect of any particular application made or business done therein, if, on such special grounds as in the last preceding rule mentioned, he shall think that such allowance ought to be so made. (Signed) Halsbury, C. Coleridge, C.J. Esher, M.E. James Hannen, Prest. P.D.A. Nath. Lindley, L.J. Edw. Fry, L.J. C. E. Pollock, B. H. Manisty, J. Costs. December 18th, 1885. 568 PRACTICE IN MATRIMONIAL SUITS. Fees to be taken for their own use by Solicitors of the Supreme Court of Judicature in respect to Divorce and Matri- monial Causes on and after the 1st day of January , 1886. Citations, Subpcenas, Writs, Summonses, Notices, and Service of Same. Old Higher Lower Scale. Scale. Scale. & s. d. £ s. d. Citation, including praecipe 0 7 6 Citation to see proceedings, including praecipe 0 7 6 Certificate of service 0 2 6 Subpoena ad testificandum and praecipe 0 6 8 Subpoena duces tecum, if 4 folios of 72 words or under, and praecipe 0 6 8 If the subpoena exceeds 4 folios in length, for each additional folio of 72 words 0 1 4 Writ of attachment, including praecipe 0 10 0 Writ of sequestration, including praecipe 0 10 0 Summons, including copy for the Court 0 8 8 Summons, each copy of, for service 0 2 0 Or per folio 0 0 4 For preparing notice to produce on the trial, or notice to admit 0 7 6 If necessarily long, not exceeding per folio 0 1 0 For preparing notice of motion 0 5 0 Or per folio 0 1 0 For preparing any other notice 0 1 6 If necessarily exceeding 3 folios, for each folio beyond 3 0 1 0 For each copy for service 0 1 0 Or per folio 0 0 4 Personal service of citation, petition, or sub- poena, or other document, if within 2 miles of the place of business of the practitioner, or of the person employed to effect the service 0 5 0 0 5 0 If beyond that distance, for each mile beyond such 2 miles 0 1 0 0 1 0 Where, in consequence of the distance of the party to be served, it is proper to effect such service through an agent (other than the London agent), for correspondence in addition 0 7 0 In cases in which the person to be served shall avoid service, or shall reside beyond the jurisdiction, a sum to be allowed for service according to the circumstances. Service, where an appearance has been entered, on the solicitor or party 0 2 6 £ s. d. 0 6 8 0 6 8 0 14 0 7 0 0 7 0 0 5 0 0 10 0 0 4 0 5 0 0 0 8 0 3 0 0 10 0 16 0 10 0 10 0 0 4 0 5 0 0 1 0 0 7 0 0 2 6 COSTS. 569 Old Higher Scale. Scale. Instructions. M s. d . M s. d. Instructions for citations, petitions, answers, or other pleadings, or amendment of pleadings, for interrogatories, special affi- davits, or applications for an order for protection of a wife’s earnings and pro- perty 0 6 8 0 13 4 Ditto to defend suit 0 13 4 Ditto for brief, on hearing 2 2 0 If there are several witnesses exa- mined, and the brief or case is necessarily long, an additional fee will be allowed. Ditto for counsel to make any applica- tion to the Court where no other brief 0 10 0 Pleadings and Perusal. Drawing and engrossing all petitions and answers, if 10 folios of 72 words or under, including a copy to file 1 0 0 If exceeding 10 folios, for every addi- tional folio, including a copy to file 0 1 4 Drawing and engrossing replications and other subsequent pleadings 0 10 0 Or per folio 0 1 0 For case for motion, including fair copy for the Court 0 10 0 If necessarily more than 7 folios, for every additional folio, including copy for the Court 0 1 4 Drawing and engrossing demurrer, inclusive of the statement of any matter of law to be argued, for 10 folios of 72 words or under 0 10 0 If exceeding 10 folios of 72 words, for every additional folio of 72 words 0 10 Drawing bill of costs, per folio of 72 words, including copy for taxation 0 0 8 Drawing any instrument to be filed in or issued by the registry for which no other fee is herein allowed, inclusive of fair copy to be filed or issued, per folio of 72 words.. 0 14 For perusing and abstracting pleadings, affidavits, exhibits, and other documents 0 13 4 Or per folio 0 0 4 Lower Scale. £ s. d. 0 6 8 0 6 8 1 1 0 0 6 8 0 5 0 0 10 0 0 8 0 6 8 0 0 4 570 PRACTICE IN MATRIMONIAL SUITS. Old Higher Scale. Scale. CopIES - £ s. d. £ «. d. Copies of petitions, answers, and other plead- ings, also of exhibits, bills of costs, or other documents, where no other provision is made, at per folio of 72 words 0 0 4 If ,any exhibit or other document to be copied, or any part thereof contains pencil marks or writing, or the copy thereof, or any part thereof, is required to be made fac-simile, in addition to any other fee for the copy:- — For every folio of pencil marks or writ- ing, or copy fac-simile, or part of a folio 0 0 4 Attendances. On entering appearance 0 6 8 To search for appearance to citation 0 6 8 On counsel with brief, when the fee to counsel is 1 guinea 0 6 8 When the fee to counsel exceeds 1 guinea and is under 5 guineas 0 6 8 When the fee is 5 guineas or more, but under 20 guineas 0 13 4 When the fee is 20 guineas 1 1 0 When the fee is 40 guineas or more 2 2 0 On consultation or conference 0 13 4 In pursuance of notice to admit 0 13 4 Or per hour 0 6 8 On trial or hearing when cause is in paper and not tried or heard, or on motion in Court 0 10 0 On trial or hearing 1 1 0 Or, according to circumstances, not to exceed 3 3 0 On taxation of bill of costs 0 6 8 Or, according to circumstances, not to exceed 2 2 0 Unless very long, when an addi- tional fee will be allowed. On examination of witnesses before any examiner, commissioner, officer, or other person 0 13 4 Or, according to circumstances, not to exceed 2 2 0 Or, if without counsel, not to exceed 3 3 0 For all necessary attendances in chambers, in the registry, before a commissioner, or counsel, or upon the adverse parties or solicitor, for which no other fee is herein allowed 0 6 8 Lower Scale. £ s. d. 0 0 4 0 3 4 0 6 8 0 6 8 0 13 4 0 13 4 0 6 8 0 6 8 0 10 0 0 13 4 3 3 0 0 6 8 2 2 0 0 13 4 2 2 0 3 3 0 COSTS. 571 Briefs, Cases for Hearing, Term Fees, &c. For drawing brief or case for hearing, per folio of 72 words For each copy, per folio of 72 words For any special letter during the dependence of the cause For every term commencing on the day the sittings commence and terminating on the day preceding the next sittings in which any business is done And further in country agency causes or matters, for letters Where no proceeding in the cause is taken which carries a term fee, a charge for letters may be allowed if the circumstances require it. Old Scale. Higher Scale. Lower Scale. £ s. d. £ s. d. £ s. d. 0 10 0 10 0 0 4 0 0 4 0 3 6 0 15 0 0 15 0 0 6 0 0 6 0 In addition to the above an allowance is to be made for the necessary expense of postage, carriage, and transmission of documents. For maps or plans, each from Copies of same, if required, each from 1 3 0 1 1 0 to 3 0 10 0 to 0 0 Affidavits. Drawing and engrossing affidavit of service or search: — If 3 folios of 72 words or under 0 5 0 If above, for every additional folio, in- cluding a copy for the Court 0 14 For drawing and engrossing any other affi- davit, including copy for the Court or registry, per folio 0 1 4 0 1 4 For preparing each exhibit in town or country 0 1 0 0 1 0 Interrogatories. For drawing the same, at per folio of 72 wordsi 0 1 0 0 1 0 0 1 0 Copy thereof to be delivered to the examiner and filed, at per folio of 72 words 004 004 004 If it becomes necessary for solicitors to transact any business for which no fee is herein specified, such fee shall be taken by them as would be allowed for similar business done in the other Divisions of the High Court of Justice. 572 PRACTICE IN MATRIMONIAL SUITS. Fees to be taken for the use of other Persons by Solicitors of the Supreme Court of Judicature in respect to Divorce and Matrimonial Causes on and after the ls£ day of January , 1886. Counsels' Clerks' Fees. Not to exceed as under: — £ s. d. Upon a fee to counsel under 5 guineas 0 2 6 5 guineas and under 10 guineas 0 5 0 10 guineas and under 20 guineas 0 10 0 20 guineas and under 30 guineas 0 15 0 30 guineas and under 50 guineas 1 0 0 50 guineas and upwards — at per cent, on the fee paid 2 10 0 On consultations: — Senior’s clerk 0 7 6 Junior’s clerk 0 2 6 On general retainer (where allowed) 0 10 6 On common retainer 0 2 6 On conference 0 5 0 Allowance to Witnesses, including their Board and Lodging. Common witnesses, such as labourers, journeymen, &c., &c.: — If resident within 5 miles of the General Post Office, per diem If resident beyond that distance, per diem, from Master tradesmen, yeomen, farmers, &c.: — If resident within 5 miles of the General Post Office, per diem, from If resident beyond that distance, per diem, from Auctioneers and accountants: — If resident within 5 miles of the General Post Office, per diem, from If resident beyond that distance, per diem, from Professional men: — If resident within 5 miles of the General Post Office, per diem If resident beyond that distance, per diem, from 0 5 0 0 5 0 to 0 7 6 0 7 6 to 0 10 0 0 10 0 to 0 15 0 0 10 6 to 1 1 0 0 10 6 to 1 1 0 1 1 0 2 2 0 to 3 3 0 COSTS. 573 Clerks to attorneys, or others: — £ s. d. If resident within 5 miles of the General Post Office, per diem 0 10 6 ( 0 15 0 If resident beyond that distance, per diem, from < to (110 Engineers and surveyors: — If resident within 5 miles of the General Post Office, per diem 110 (110 If resident beyond that distance, per diem, from ] to (330 Notaries, per diem 110 Esquires, bankers, merchants, and gentlemen, per diem 1 1 0 Females, according to station in life: — If resident within 5 miles of the General Post Office, per diem, | ® ^ ® from ( 0 10° 0 (050 If resident beyond that distance, per diem, from < to ( 1 0 0 Police inspector: — If resident within 5 miles of the General Post Office, per diem 0 5 0 (0 7 6 If resident beyond that distance, per diem, from J to ( o io o Police constable: — If resident within 5 miles of the General Post Office, per diem 0 3 0 (050 If resident beyond that distance, per diem, from < to ( 0 7 6 The travelling expenses of witnesses will be allowed according to the sums reasonably and actually paid ; but in no case will there be an allowance for such expenses of more than Is. per mile one way. Commissioners for taking oaths: — For administering oaths to each deponent 0 1 6 For marking each exhibit annexed to an affidavit 0 1 0 574 PRACTICE IN MATRIMONIAL SUITS. Cause No. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) 1. Petitioner’s (Wife) Costs up to Trial for Judicial Separation. & s. d. £ s. d. 189 . May 1. Instructions for petition for judicial separation 0 6 8 Drawing and engrossing petition, including copy to file (folios 12) 12 8 Fee to Mr. to settle petition 1 3 6 Attending him 0 6 8 Instructions for affidavit in support of petition 0 6 8 Drawing and engrossing same 0 6 8 8. Attending petitioner on her signing petition 0 6 8 Paid oath 0 1 6 Instructions for citation 0 6 8 Drawing same, parchment and praecipe 0 7 6 Attending filing petition and affidavit 0 6 8 Paid filing 0 5 0 Attending getting citation sealed 0 6 8 Paid sealing 0 5 0 Paid for office copy petition under seal, collating and certifying 0 14 0 Attending for same 0 6 8 Copy citation for service 0 1 8 9. Writing Mr. of , France, with office copy petition and copy citation and with full instruc- tions for service 0 5 0 Paid postage and registering letter to him 0 1 3 15. Instructions for petition for alimony 'pendente life 0 6 8 Drawing same 1 0 0 Fair copy 0 2 0 Attending filing petition for alimony 0 6 8 Paid filing 0 2 6 Paid agent’s charges for service of petition and citation 3 0 2 Copy petition for alimony for service 0 2 0 Service of petition for alimony on respondent at Forest Hill, and mileage 0 10 0 25. Writing Messrs. in reply to theirs that we could not consent to their having any further time to file answer unless respondent paid £10 on account of alimony, and then we would consent to their having 14 days 0 3 6 Attending respondent’s summons for further time to file answer to petition for alimony when order made for 14 days 0 6 8 Perusing respondent’s answer to petition for alimony 0 6 8 COSTS. 575 £j s. d. £ s. d. June 14. Attending registrar obtaining appointment to fix alimony 0 6 8 Paid registrar’s fee for fixing alimony 0 10 0 Copy and service of appointment on respondent 0 4 0 Attending respondent’s solicitors on their obtaining 14 days further time to file answer to petition 0 6 8 Sittings’ fee (agency) 1 1 0 Trinity Sittings. 18. Attending filing citation against respondent 0 6 8 Paid filing 0 2 6 20. Attending appointment before registrar to fix alimony when appointment adjourned till next Monday as no one attended for respondent 0 6 8 24. Attending appointment to fix alimony 'pendente lite when order made fixing the alimony at £ a year 0 13 4 29. Attending to draw up order for alimony pendente lite 0 6 8 Paid for order 0 5 0 July 4. Copy and service of order on respondent 0 3 6 Perusing answer to petition 0 6 8 9. Summons to strike out answer on ground that same was embarrassing, and also respondent’s appearance on the ground that he had not given an address for service within the radius 0 5 0 Attending to issue 0 6 8 Paid issuing 0 8 0 Copy and service of summons 0 3 6 15. Attending summons when order made striking out answer, and respondent ordered to give an address for service within the radius at once 0 6 8 Attending in registry drawing up order 0 6 8 Copy and service of order 0 3 6 Pei using amended answer of the respondent 0 6 8 Attending searching at Divorce Registry if the respon- dent had filed his amended answer and found he had.. 0 6 8 29. Drawing summons to strike out answer and copy to file 0 5 0 Attending issuing 0 6 8 Paid issuing 0 8 0 Copy and service of summons 0 3 6 August 5. Attending summons to strike out respon- dent’s answer to petition on the ground that same was embarrassing, when as the respondent did not attend, the registrar on our application adjourned the summons until Wednesday next, to give the re- spondent another opportunity to attend 0 6 8 Notice to respondent that summons had been adjourned till Wednesday next 0 4 0 Attending adjourned summons when, as the respondent although in the registry refused to attend the sum- mons, the registrar made an order striking out all but the first 5 lines of the answer, on our filing affidavit of service and no attendance 0 6 8 Drawing and engrossing affidavit of service and no attendance 0 6 8 576 PRACTICE IN MATRIMONIAL SUITS. £ s. d. £ s. d. Attending to be sworn 0 6 8 Paid oath and exhibit 0 2 6 Marking exhibit 0 1 0 Attending filing affidavit of service 0 6 8 Paid filing affidavit 0 2 6 Attending drawing up order 0 6 8 Copy and service of order 0 3 6 13. Attending in registry amending respondent’s answer pursuant to order 0 6 8 Paid fee on amending 0 2 6 15. Attending at India Office bespeaking copy of certi- ficate of marriage 0 6 8 Paid for search and for certificate 0 11 0 Attending bespeaking registrar’s certificate that plead- ings in order 0 6 8 22. Attending for certificate and setting down cause... 0 6 8 Paid setting down 3 2 6 Notice thereof, copy and service 0 4 0 Copy notice to file 0 1 0 Paid filing 0 2 6 Drawing bill of costs and copies (folios 28) 1 8 0 Attending filing 0 6 8 Paid filing 0 2 6 Notice 'of taxing copy and service 0 4 0 Attending taxing 0 13 4 Attending agreeing costs 0 6 8 Attending fixing amount of security for further costs... 0 6 8 Attending for order 0 6 8 Paid for same 0 15 0 Copy and service of order 0 4 (1 Sittings’ fee (agency) 1 1 0 2. Petitioner’s (Wife) Costs of Trial — Judicial Separation — Examination of Witness before Special Examiner. Trinity Sittings , 19 . £ s. d. £ s. d » Attending searching if respondent had paid £ into Court as further security for costs as ordered and found he had 0 6 8 Attending retaining Mr. on behalf of the peti- tioner 0 6 8 Fee to him and clerk 1 3 6 Instructions to him to advise on evidence 0 13 4 Paid his fee and clerk 2 4 6 Attending him 0 6 8 Nov. 18. Drawing praecipe and attending getting 2 subpoenas ad test, sealed 0 13 4 Paid 0 10 0 Paid parchment 0 1 0 COSTS. 577 Copy and service of subpoena on and mileage £ s. d. £ s. d. (6 miles) 0 12 0 The like on 0 6 0 The like (4 more witnesses) 1 4 0 Instructions for brief, including several journeys to , taking proofs of evidence of petitioner and witnesses 8 8 0 Drawing same (together 100 folios) 5 0 0 Brief copy for counsel 1 13 4 The like petition for judicial separation and respon- dent’s answer and amended answer thereto (together folios 45) 0 15 0 The like certificate of Dr. and Dr. and affidavit verifying their certificate (together folios 10) 0 3 4 Fee to Mr. with brief 5 10 0 Attending him 0 6 8 Attending appointing conference with counsel 0 3 4 Attending conference, when he considered the evidence of very material and that we must take it be- fore a special examiner if she could not attend Court 0 13 4 Conference fee to him and clerk 1 6 0 the witness, when he informed us that it was out of all question to suppose the witness would be able to attend the trial, and he gave us a certificate to that effect to enable us to get an order to take the witness’s evidence before a special examiner 1 1 0 25. Drawing and engrossing summons for examination of before special examiner and for further security for costs 0 5 0 Attending issuing 0 6 8 Paid stamps thereon 0 8 0 Copy and service of summons on respondent at 0 5 0 Instructions for affidavit in support of summons 0 6 8 Drawing same 0 5 0 Engrossing, 0 1 8 Attending swearing affidavit 0 6 8 Paid oath and exhibit 0 2 6 Marking exhibit 0 1 0 Copy affidavit and exhibit for respondent (together folios 8) 0 2 8 29. Attending summons for examination of be- fore special examiner, when order made for exa- mination and Mr. appointed examiner, and respondent ordered to give £ further security for costs of examination 0 6 8 Paid filing affidavit 0 2 6 30. Attending drawing up order for examination 0 6 8 Copy and service of order at , and mileage Attending drawing up order for further security 0 6 8 *Copy and service of order at 0 3 6 Dec. 1. Perusing affidavit and doctor’s certificate re- ceived from respondent that witness was not in a fit state to be examined 0 6 8 Attending witness’s doctor therewith when he wrote us his opinion that witness was quite capable of giving evidence 0 13 4 * Served with copy order for examination. D.M.C. 37. 578 PRACTICE IN MATRIMONIAL SUITS. £ s. d. £ s. d. 4. Attending examiner obtaining an appointment from him to take the examination 0 6 8 Drawing and engrossing notice thereof 0 5 0 Copy and service of appointment on respondent at , and mileage 0 5 0 Instructions to Mr. to attend and examine wit- ness on behalf of the petitioner 0 13 4 Fair copy proof of witness for him (folios 10) 0 3 4 Fee to him and clerk 2 4 6 Attending him 0 6 8 Attending appointing conference with him 0 6 8 Conference fee to him and clerk 1 6 0 Attending conference 0 13 4 8. Attending searching cause list when we found this case would be in to-morrow’s paper 0 6 8 Attending respondent’s summons to rescind or vary the order for examination of witness, when same dis- missed 0 6 8 Instructions to Mr. to apply that case be not taken before 0 6 8 Fee to him and clerk 1 3 6 Attending him 0 3 4 Instructions for affidavit in support of application to postpone trial 0 6 8 Drawing same 0 8 0 Engrossing 0 2 8 Attending to be sworn 0 6 8 Paid oath 0 1 6 Brief copy affidavit for counsel (folios 8) 0 2 8 Fair copy for respondent 0 2 8 Notice of application to him, copy and service 0 4 0 Attending Court when application made, and judge ordered that case be not in the paper before 0 13 4 Paid filing affidavit 0 2 6 9. Attending examination at , when examination taken 2 2 0 10. Attending at Divorce Registry searching if exa- mination had been filed by examiner, and found it had, paying fees thereon, and bespeaking copy thereof 0 6 8 Paid filing fees 0 5 6 Fee to Mr. , as examiner 3 13 6 Attending paying 0 6 8 10. Attending at Divorce Registry obtaining office copy examination of witness 0 6 8 Paid for same 0 9 0 Brief copy for counsel 0 4 8 Attending searching if this case would be in the paper for trial to-morrow and found it would 0 6 8 Notice to respondent and 7 witnesses to attend trial 0 14 0 11. Attending Court all day, case partly tried and adjourned till to-morrow 2 2 0 Clerk’s attendance on the witnesses 0 10 6 Attending marking refresher on Mr. ’s brief 0 6 8 Refresher fee to him and clerk 3 5 6 12. Attending Court, case proceeded with and judg- ment given for the petitioner for judicial separation with custody of children with costs 2 2 0 Clerk’s attendance 0 10 6 COSTS. 579 £ s. d. £ s. d. Attending settling with witnesses 0 6 8 Attending bespeaking office copy decree under hand of judge 0 6 8 Paid for same 0 5 0 Copy thereof 0 2 0 Service on respondent 0 2 6 Drawing bill of costs and copies (folios ) Attending filing 0 6 8 Paid filing 0 2 6 Notice of taxing copy and service at 0 5 0 Attending taxing 0 13 4 Attending agreeing costs 0 6 8 Attending registry with authority for payment of sum out of Court and getting same signed 0 6 8 Attending at paymaster’s office and lodging same 0 6 8 Attending for cheque 0 6 8 Attending for order for payment of balance of taxed costs 0 6 8 Paid for same 0 5 0 Copy and service of order 0 6 0 Term fee 1 1 0 Letters, messengers, &c 1 1 0 Paid witnesses 3. Costs of Petitioner (Wife) of Petition for a Divorce on the ground of Cruelty and Adul- tery, down to Decree Nisi. Michaelmas Sittings , 19 . £ s. d . Nov. 10. Instructions for petition 0 6 8 Attending retaining Mr. B 0 6 8 Paid his fee and clerk 1 3 6 Drawing petition, and copy to file 1 0 0 Fee to Mr. B. and clerk to settle 1 3 6 Attending him 0 3 4 Instructions for affidavit in support 0 6 8 Drawing and copy affidavit in support 0 6 8 27. Attending petitioner reading over petition and affidavit, and attending commissioner appointing for him to administer oath, and subsequently when he administered oath 0 6 8 Paid oath and exhibit 0 2 6 Attending filing petition 0 6 8 Paid 0 5 0 Paid filing affidavit 0 2 6 Dec. 4. Instructions for citation against the respondent 0 6 8 Drawing and engrossing same, and praecipe 0 7 6 Paid stamp thereon 0 5 0 Paid parchment 0 1 6 Attending at the registry procuring same to be signed and sealed.. 0 6 8 Attending at the registry for and obtaining office copy petition certified and sealed 0 6 8 37 (2) 580 PRACTICE IN MATRIMONIAL SUITS. £ s. d. Paid for copy 0 5 0 Paid sealing 0 5 0 Paid certifying 0 2 6 Copy citation, for service on respondent at B 0 1 8 Writing correspondent at B. (Mr. G.) with citation and petition for service, and with full instructions 0 3 6 7. Letter to Mr. G. acknowledging receipt of citation, with certi- ficate of service indorsed, and inclosing his charges 0 3 6 Paid agent’s charges for service Certificate of service 0 2 6 10. Instructions for petition for alimony pendente lite 0 6 8 Drawing same, and copy for counsel (folios 12) 1 2 8 11. Fee to Mr. B. and clerk to settle draft petition 1 3 6 Attending him 0 3 4 Attending filing petition 0 6 8 Paid 0 5 0 Copy petition for service 0 4 0 Service thereof on respondent’s solicitors 0 2 6 Attending filing citation 0 6 8 Paid 0 2 6 18. Attending giving consent to order for extension of time to answer petition for alimony 0 6 8 Attending giving consent for further time to answer petition for dissolution 0 6 8 Term fee 0 15 0 Hilary Sitting's, 19 . Jan. 17. Attending summons for further time to answer petition; order made for 7 days ; answer to petition for alimony to be filed at the same time, and £20 to be paid on account of alimony to petitioner’s solicitor on or before 24th inst 0 6 8 19. Perusing copy respondent’s answer to petition for dissolution received from his solicitors by post this morning 0 3 4 26. Notice of motion for directions as to mode of trial, copy and service on respondent’s solicitors 0 4 6 27. Drawing case for motion, and copy for the judge 0 8 0 Copy notice of motion, to accompany 0 1 0 Attending in the registry filing same 0 6 8 Paid stamps 0 11 0 Copy case on motion, for counsel 0 3 4 Copy notice of motion, to annex 0 1 0 Feb. 1. Attending Mr. B. with brief 0 6 8 Paid his fee and clerk 1 3 6 Attending summons for further time to answer petition for alimony ; order made, to be filed to-day 0 6 8 On receipt of affidavit in answer to petition for alimony, perusing same and schedule thereto (folios 14) 0 4 8 Attending Court on motion; directions given for cause to be heard before the Court itself 0 13 4 2. Attending drawing up order 0 6 8 Paid 0 2 6 Attending setting cause down 0 6 8 Paid fees 3 5 0 Notice of setting down to respondent’s solicitors, copy and service. 0 4 0 Copy notice, to file 0 1 0 COSTS. 581 £ s. d. 4. Drawing retainer and attending Mr. J., K.C., and retaining him 0 6 8 Paid his fee and clerk 1 3 6 8. Instructions for affidavit in reply 0 6 8 Drawing same and copy for counsel 0 9 4 Fee to Mr. B. to settle same and clerk 1 3 6 Attending him 0 3 4 Preparing summons for leave to file reply to answer to petition for alimony, notwithstanding time expired 0 5 0 Attending to issue same 0 6 8 Paid fee thereon 0 3 0 Copy and service on respondent’s solicitors 0 3 6 9. Attending obtaining appointment to proceed on reference as to alimony in anticipation of reply to save time 0 6 8 Notice thereof to respondent’s solicitors 0 4 0 14. Attending summons for leave to file reply to answer to peti- tion for alimony, order made 0 6 8 Attending petitioner on her being sworn to reply to petition 0 6 8 Paid oath 0 1 6 15. Attending drawing up order for leave to file reply 0 6 8 Paid for order 0 5 0 Attending filing reply 0 6 8 Paid 0 5 0 Notice of filing to respondent’s solicitors 0 4 0 Copy reply for them 0 2 4 22. Attending proceeding before the registrar on the reference as to alimony pendente lite; same fixed at £188 per annum, payable monthly; the registrar declined to make any allowance for maintenance of children 0 13 4 Paid fee on reference 1 0 0 24. Attending drawing up order for alimony pendente lite 0 6 8 Paid for order 0 5 0 Copy and service of order upon Messrs. L. and L 0 4 0 Term fee 0 15 0 Easter Sittings, 19 . April 26. Instructions for advice on evidence, charges of cruelty extending from 18 1 1 0 27. Fee to Mr. B. with case and papers, and to his clerk 5 10 0 Attending him 0 6 8 May 15. Four subpoenas ad test 1 6 8 Paid sealing 1 0 0 Term fee 0 15 0 Trinity Sittings, 19 . June 15. Writing the Eev. D. B. (Londonderry), in reply, that the trial was expected to take place within the next fortnight, and requesting him to inform Miss M. and Mrs. M. to hold them- selves in readiness to come to London 0 3 6 Letter to Mr. C. urging him to send reply to my letter of 10th instant, and informing him the trial was expected shortly to take place 0 16 23. Letter to Mrs. H. (petitioner) desiring her to hold herself in readiness to come up to town with Misses C. and L. M 0 3 6 582 PRACTICE IN MATRIMONIAL SUITS. £ s. d. Drawing* notice to produce (folios 10) and copy to serve 0 10 0 Service 0 2 6 Instructions for brief, including 1 case for advice on evidence and numerous attendances, special instructions from time to time, and letters and telegrams to and from Mr. K. ; perusing Jiis several reports; conferences with and attendances on the peti- tioner relating thereto, and perusing and considering voluminous correspondence between her and the respondent; conferences with counsel not otherwise charged; also with photographers, and several and repeated attendances on witnesses and other persons subpoenaed and attending from Ireland and other places. 10 10 0 Drawing brief, less letters, &c. copied therewith (viz., 552 folios less 19=533) 26 13 0 Two copies for counsel 17 15 8 The like of letters included in brief (folios 19 each) 0 12 8 Two copies notice to produce 0 6 8 The like of notice of trial 0 2 0 24. Attending to watch cause list 0 6 8 26. Attending Mr. J., K.C., with brief 0 13 4 Paid his fee and clerk 27 0 0 Attending him to obtain appointment for consultation 0 6 8 Paid him consultation fee and clerk 2 9 6 Attending Mr. B. with brief 0 13 4 Fee to him and clerk 21 15 0 Attendance to appoint consultation 0 3 4 Paid him consultation fee and clerk 1 3 6 27. Sixteen notices to witnesses to attend on their subpoenas 16 0 Service of subpoena on Miss M 0 5 0 28. Attending to ascertain if cause in the paper for to-morrow; it was struck out at the last moment 0 6 8 Attending dispatching telegram to Mr. K. not to bring up wit- nesses until to-morrow night 0 3 4 Paid 0 1 0 Attending dispatching telegram to Mrs. H. not to attend with her daughters to-morrow 0 3 4 Paid 0 1 0 29. Attending consultation, arranged not to call Dr. C. or Mr. B., but as L. and T. could not be found, Dr. H., of Bath, must be called 0 13 4 Attending searching list, cause inserted for to-morrow 0 6 8 Attending dispatching telegram to Mr. K. to bring up all the witnesses, including Dr. H., but not Mr. B., to-day 0 3 4 Paid 0 1 0 Attending dispatching telegram to Mrs. H. to attend the Court to-morrow with Misses C. and L. H. and A. W 0 3 4 Paid 0 1 0 Attendances searching for, bespeaking, and to procure certificate of marriage 0 6 8 Paid fees 0 3 7 Notices to Mrs. M. and Miss M. to attend on their subpoenas 0 3 0 30. Attending Court on hearing of cause; decree nisi, with costs, and order for custody of children 2 2 0 (If all day, 3 1. 3s.) Payments to witnesses (as per scale, p. 617). Attending bespeaking copy decree nisi 0 6 8 The like copy order for custody signed by the judge 0 6 8 Paid fee thereon 0 5 0 COSTS. 583 July 18. Instructions for affidavit in support of motion for main- £ s. d. tenance of children . 0 6 8 Drawing same and copy for counsel (folios 16) 1 1 4 Fee to Mr. B. to settle same and clerk 1 3 6 Attending him 0 3 4 19. Attending Mrs. H. on her deposing thereto 0 6 8 Paid oath 0 1 6 Drawing notice of motion, copy and service on respondent’s solicitors 0 4 6 Copy notice, to file 0 1 0 Paid filing 0 2 6 Copy affidavit for them 0 5 4 20. Drawing case for motion, and copy to file 0 10 0 Attending filing same, and affidavit in support, and notice 0 6 8 Paid setting down motion 0 10 0 Paid filing affidavit and notice 0 5 0 22. Copy case for counsel 0 3 4 Drawing observations and copy (1 brief sheet) 0 10 0 Copy notice of motion to annex to brief 0 1 0 Attending Mr. B. with brief 0 6 8 Fee to him therewith, and clerk 2 4 6 26. Perusing copy affidavit of respondent in opposition to motion (folios 10) 0 3 4 Copy for counsel 0 3 4 Attending Court on motion; order made for allowance at the rate of 50£. per annum for each child, payable monthly 0 13 4 Attending in the registry drawing up the order 0 6 8 Paid for office copy 0 2 6 Drawing affidavit of increase (folios 24) 1 4 0 Engrossing 0 8 0 Attending being sworn 0 6 8 Paid oath 0 1 6 Fair copy for respondent’s solicitors 0 8 0 Drawing bill of costs and copy, and copy to file (folios 75) 3 15 0 Service thereof and of copy affidavit 0 2 6 Attending filing bill and affidavit 0 6 8 Paid fees 0 5 0 On receipt of appointment to tax, copy and service 0 4 0 Attending taxing 2 2 0 Attending making bills agree and taking copy certificate 0 13 4 Taxing fee Term fee 0 15 0 Letters, postages, telegrams, messages, and attendances not before charged 3 3 0 Supplemental Bill.* 18 . Feb. 26. Attending appointment before registrar to settle minutes of order; adjourned for a week at the request of the respondent’s solicitors 0 6 8 March 2. Attending respondent’s solicitors on their bringing copy opinion of Mr. F. taken by them, and conferring as to course to be taken; they intimated they should require the matter to go before the judge, but it was agreed to attend the appointment before the registrar on Monday next 0 6 8 Perusing copy opinion 0 4 0 * See Ottaway v. Hamilton (1878), 3 C. P. D. 393. 584 PRACTICE IN MATRIMONIAL SUITS. 5. Attending adjourned appointment before the registrar; respon- £ s. d. dent’s solicitors read the opinion of Mr. F., and at their request an adjournment to the judge in chambers was directed, to be attended by counsel : — Drawing brief to counsel to attend, and copy (1 brief sheet).. 0 10 0 Copy opinion of Mr. F., to accompany 0 4 0 Fee to Mr. B. with brief and clerk 2 4 6 Attending him 0 6 8 Attending adjournment before the judge in chambers; his lordship, after hearing the arguments, intimated that his decision would be given next week 0 6 8 12. The case having been set down with the motions for to- morrow, fee to Mr. B. to attend, and clerk 1 3 6 Attending him 0 3 4 13. Attending Court; the judge gave his decision in favour of the petitioner on all points, declaring it to be his intention that not only every interest which the respondent took in his wife’s moneys under the settlement, but every power over it, was to be forfeited, as if he were actually dead 0 13 4 Drawing this bill and 2 copies (folios 7)* 0 7 0 4. Further Costs of Petitioner down to Decree Absolute. Trinity Sittings , 19 . July 26. Instructions for and drawing petition for permanent maintenance of the petitioner and her children (folios 16), and copy for counsel 1 8 0 28. Fee to Mr. B. to settle same, and clerk 1 3 6 Attending filing 0 6 8 Paid 0 5 0 Attending bespeaking certified and sealed copy for service on re- spondent, and subsequent attendance for same 0 6 8 Paid fees 0 17 0 Letter to correspondent at B. therewith, for service on respondent. 0 3 6 Instructions for petition to vary settlement 0 6 8 Drawing same and copy for counsel 0 6 8 Perusing copy settlement of 13th June, 18 (folios 161) 2 13 8 Copy for counsel 2 13 8 Paid trustees’ solicitor for copy deed of appointment executed by petitioner and respondent under settlement 0 14 6 Copy deed for counsel 0 11 8 Fee to Mr. B. and clerk to peruse papers and settle draft petition. 2 4 6 Attending him 0 6 8 * In this case the registrar, taxing in the usual course as between party and party, struck out (without taxing them) the whole of the charges for detectives employed in obtaining information relating to the acts of adultery, &c. alleged to have been committed by the respondent in divers places. These and other costs disallowed upon the taxation in the suit as between husband and wife were held by the Common Pleas Division, and afterwards by the Court of Appeal, to be recoverable by her solicitor against the husband, so far as they were properly and reasonably incurred, as necessaries supplied to the wife: see Ottaway v. Hamilton , 3 C. P. D. 393. COSTS. 585 £ s. d. Paid for certified and sealed copy petition for -service on respondent 0 17 0 The like for service on Colonel W., one of the trustees 0 17 0 Letter to Mr. W., Wrexham, with same for service 0 3 6 Paid for certified and sealed copy petition for service on the other trustee; 0 17 0 August 2. Letter to Messrs. M. and B., Sherborne, with same for service on Mr. K., at L. Rectory 0 3 6 4. Letter to Mr. G-., Bath, with post office order for charges for service of petition on respondent, and attending for order 0 3 6 Paid 0 10 8 Paid Messrs. M. and B., Sherborne, with post office order for charges for service of petition on Mr. H 1 0 6 9. Paid Messrs. A. and B. with post office order for their charge for service of petition on Colonel W 0 13 8 16. Attending summons for time to answer petition for permanent maintenance and petition to vary settlement; order made for a month 0 6 8 Sept. 13. Attending summons for further time to answer peti- tions; order made for 3 weeks 0 6 8 Oct. 25. Perusing copy answer to petition for permanent mainten- ance served by respondent’s solicitors (folios 17) 0 5 8 Perusing copy answer to petition for alteration of settlement (folios 16) 0 5 4 30. Instructions for reply to answer to petition for permanent maintenance 0 6 8 Drawing same and copy for counsel (folios 8) 1 0 0 Attending Mr. B. therewith to settle 0 3 4 Paid his fee and clerk 1 3 6 Engrossing reply 0 2 8 Attending petitioner on her deposing thereto 0 6 8 Paid oath 0 1 6 Attending filing 0 6 8 Paid 0 5 0 Copy for service on respondent’s solicitors 0 2 8 Service thereof 0 2 6 30. Instructions for reply to respondent’s answer to petition for alteration of settlement 0 6 8 Drawing same and copy for counsel (folios 7) 1 0 0 Attending Mr. B. therewith to settle 0 3 4 Paid his fee and clerk 1 3 6 Nov. 3. Engrossing same 0 2 4 Attending petitioner and with her to commissioner on her deposing thereto 0 6 8 Paid oath 0 1 6 Attending filing 0 6 8 Paid fee 0 2 6 Notice of filing to respondent’s solicitors 0 4 0 Copy reply for them 0 2 4 Michaelmas Sittings, 19 . Nov. 27. Attending for and obtaining appointment to proceed on petitions 0 6 8 Notice thereof to respondent’s solicitors 0 4 0 Having received notice that respondent would attend by counsel, brief copy to counsel to attend and support petition for per- manent maintenance 0 5 4 The like answer 0 5 8 586 PRACTICE IN MATRIMONIAL SUITS. £ s. d . The like reply 0 2 8 Drawing observations and copy (2 brief sheets) 0 10 0 Copy petition for alimony 'pendente lite to accompany (folios 12). 0 4 0 The like of answer (folios 14) 0 4 8 The like of reply* 0 3 4 Fee to counsel with brief and clerk 2 4 6 Attending him 0 6 8 Brief petition to alter settlements for counsel 0 5 4 The like of answer 0 3 4 The like of reply 0 2 4 Dec. 5. Attending Mr. B. with brief 0 6 8 Paid his fee and clerk 1 3 6 6. Attending proceeding on petition for permanent maintenance, adjourned to 18th instant, respondent to furnish evidence of sale of house, value of furniture, paintings, prints, china, &c Attending proceeding on petition to vary settlement, adjourned to same time 0 13 4 16. Attending Mr. B. with brief and papers to attend adjourned appointment before registrar on petition for permanent main- tenance 0 6 8 Paid his fee and clerk 2 4 6 18. Attending adjourned appointment on reference, petition for permanent maintenance, adjourned to 4th January next on the Attending adjourned appointment on petition to vary settlement, adjourned in like manner 0 6 8 18 . Jan. 1. Perusing copy affidavit of respondent and valuer as to value of furniture, plate, pictures, &c., received from respon- dent's solicitors (folios 8) 0 2 8 2. On receiving letter from Messrs. M. and D. offering to produce contract for sale of house in Bath, for my inspection, attending them inspecting contract accordingly and taking particulars — 0 6 8 3. Attending- adjourned appointment proceeding on petition for maintenance 0 6 8 The like petition to vary settlement 0 6 8 6. Attending at registry on receipt of letter from registrar’s clerk perusing and settling draft report on petitions for maintenance and to vary settlement 0 6 8 10. Attending bespeaking office copy report 0 6 8 Paid 0 5 0 Paid fees on reference 2 0 0 The like 0 10 0 Notice of filing report, copy and service 0 4 0 Term fee 0 15 0 Hilary Sittings, 19 17. Notice of motion for decree absolute and to confirm report on petition for maintenance and for order thereon, copy and service 0 4 18. Attending searching for appearance in opposition to decree absolute 0 6 8 Paid fee 0 10 Attending searching minutes for any affidavit in opposition 0 6 8 Drawing and engrossing affidavit of result (folios 5) 0 6 8 Attending to depose thereto 0 6 8 Paid oath 0 16 * All the above documents were referred to in the respondent’s answer. COSTS. 587 £ s. d. Drawing case for motion and copy to file 0 10 0 Copy notice to file 0 1 0 Attending filing case, affidavit, and notice 0 6 8 Paid fee on motion and for order 0 10 0 Paid fee on entering order for maintenance 0 5 0 Paid filing affidavit and notice 0 3 0 19. Copy case on motion for counsel 0 3 4 The like of report (folios 10) 0 3 4 Copy notice of motion to annex to brief 0 1 0 The like of affidavit of searches 0 1 8 20. Attending Mr. B. with brief 0 6 8 Fee to him and clerk 2 4 6 23. Attending Court on motion; the questions arising on the report were fully argued, and, the Court having expressed its intention of making an order to vary settlement by giving the respondent’s life interest to the petitioner and the children living with her, no order for maintenance was made, and the decree nisi was made absolute 0 13 4 Attending at the registry on order 0 6 8 Paid for office copy 0 2 6 Copy notice of motion for order on petition for variation of settle- ment for service on respondent’s solicitors 0 2 4 Service thereof 0 2 6 Drawing case for motion and copy 0 10 0 Copy notice to file therewith 0 2 0 Attending filing 0 6 8 Paid 0 6 0 Paid fee on motion 0 3 0 Copy case for counsel 0 3 4 Copy notice of motion to annex to brief 0 2 0 Fee to Mr. B. with brief and clerk 2 4 6 Attending him 0 6 8 Attending Court on motion; order made, minutes to be settled by counsel 0 13 4 Drawing minutes of order accordingly and copy for counsel (folios 6) 0 8 0 Fee to Mr. B. to settle same, and clerk 13 6 Attending him 0 3 4 Copy minutes for respondent’s solicitors, as required by them 0 2 0 Attending at the registry accordingly, but the respondent’s solici- tors required further time to consider the minutes, and subse- quently writing to them to return the minutes approved of with any alterations therein which they might have to suggest 0 6 8 29. Several attendances on them for return of draft minutes, and again this day, without success, and attending the registrar with copy minutes, and obtaining appointment before him to settle same on Monday next at half-past 2 0 6 8 Notice of appointment to respondent’s solicitors, copy and service. 0 4 0 Copy minutes for the registrar 0 2 0 Attending at the registry drawing up order 0 6 8 Attending bespeaking and to procure certified and sealed copy of the decree for service on the trustees 0 6 8 Paid for same 0 5 0 Letter to Mr. G., the trustees’ solicitor, for acceptance of service on behalf of the trustees 0 5 0 Drawing bill of costs and copy (folios 39) 16 0 Copy for respondent’s solicitors 0 13 0 Service thereof 0 2 6 588 PRACTICE IN MATRIMONIAL SUITS. £ s. d. Attending filing bill 0 6 8 Paid 0 2 6 Notice of appointment to tax to respondent’s solicitors, copy and service 0 4 0 Attending taxing 1 1 0 Attending at the registry to complete bill as taxed and for allocatur 0 6 8 Term fee 0 15 0 Letters, &c 0 10 0 Paid taxing 5. Petitioner’s Costs against Co-respondent — Order FOR LEAVE TO TAKE CHILDREN OUT OF THE JURISDIC- TION. Respondent given her Costs. Michaelmas Sittings, 19 £ s. d. £ s. d. Dec. 18. Instructions for petition for divorce 0 6 8 Drawing and engrossing same 1 0 0 If exceeding 10 folios, for every additional folio, includ- ing a copy to file 0 1 4 Fee to Mr. to settle 1 3 6 Attending him 0 3 4 Instructions for affidavit verifying petition 0 6 8 Drawing same 0 5 0 20. Attending filing petition and affidavit 0 6 8 Paid 0 5 0 Drawing and copy retainer to Mr. 0 6 8 Fee to him and clerk 1 3 6 Attending for copy petition under seal 0 6 8 Paid 1 2 0 Instructions for citation against respondent 0 6 8 Drawing same, parchment, and praecipe 0 7 6 Attending getting same sealed 0 6 8 Paid 0 5 0 Copy for service 0 1 8 Instructions for citation against co-respondent 0 6 8 Drawing same, parchment, and praecipe 0 7 6 Attending getting same sealed 0 6 8 Paid 0 5 0 28. Attending by appointment at Messrs. ’s office serving petition and citation on co-respondent 0 5 0 Indorsing citation with certificate of service on co- respondent 0 2 6 29. Service of petition and citation on respondent 0 5 0 Indorsing citation with certificate of service on re- spondent 0 2 6 Term fee, agency, &c 1 1 0 Hilary Sittings, 19 . Jan. 13. Attending searching for appearance of re- spondent 0 6 8 The like co-respondent 0 6 8 Perusing respondent’s answer 0 6 8 COSTS. 589 18. Drawing summons for further particulars of the £ s. d. £ s. d. times and places when and where the acts of wilful neglect, misconduct, &c., alleged in the second para- graph of the answer were committed, and copy for the Court 0 5 0 Attending issuing 0 6 8 Paid issuing and for order to be made thereon 0 8 0 Copy and service of summons 0 3 6 23. Attending summons for particulars when order made 0 6 8 Attending for order 0 6 8 Copy and service of order 0 3 6 Instructions for reply to answer of respondent 0 6 8 Drawing- same 0 5 0 Fee to Mr. to settle 1 3 6 Attending him 0 3 4 Engrossing reply to settle 0 1 0 Attending filing 0 6 8 Paid filing 0 2 6 Copy for respondent’s solicitor 0 1 0 Attending to deliver 0 3 4 Attending filing citation against respondent 0 6 8 Paid filing 0 2 6 Attending filing citation against co-respondent 0 6 8 Paid filing 0 2 6 Attending searching if answer filed by co-respondent, and found none 0 6 8 Paid search 0 2 6 Drawing and engrossing affidavit of search and no answer 0 6 8 Attending swearing 0 6 8 Paid oath 0 1 6 Attending filing affidavit of search, and no answer 0 6 8 Paid filing 0 2 6 Attending searching for and bespeaking copy of mar- riage certificate of parties 0 6 8 Paid search 0 3 7 Attending bespeaking registrar’s certificate of pleadings being in order 0 6 8 Attending for certificate setting down cause for hearing 0 6 8 Paid setting down Feb. 5. Drawing notice of setting down copy and service on respondent’s solicitors 0 4 0 Copy notice to file 0 1 0 Paid filing 0 2 6 Copy and service of notice on respondent’s solicitors 0 3 6 15. Drawing summons for leave to file supplemental petition and copy for the Court 0 5 0 Attending issuing 0 6 8 Paid issuing and for order to be made thereon 0 8 0 Copy and service of summons on respondent’s solicitors 0 3 6 The like on co-respondent’s solicitors 0 3 6 16. Attending summons for leave to file supplemental petition, when same adjourned for affidavit in sup- port till to-morrow 0 6 8 Drawing affidavit of Mr. in support of summons for leave to file supplemental petition* 0 5 0 * Instructions disallowed on taxation. 590 PRACTICE IN MATRIMONIAL SUITS. £ s. d. £ s. d. Engrossing 0 18 Attending to be sworn 0 6 8 Paid oath 0 1 6 Copy affidavit for respondent’s solicitors 0 1 8 Copy affidavit for co-respondent’s solicitors 0 1 8 17. Attending adjourned summons for leave to file supplemental petition, when order made 0 6 8 Paid filing affidavit 0 2 6 Attending to draw up order 0 6 8 Copy and service of order on respondent’s solicitor 0 3 6 The like on co-respondent’s solicitor 0 3 6 Instructions for supplemental petition 0 6 8 Drawing and engrossing same 1 0 0 Attending Mr. with same to settle 0 6 8 Paid his fee and clerk 1 3 6 Instructions for affidavit verifying supplemental peti- tion 0 6 8 Drawing and engrossing same 0 5 0 Attending petitioner on his being sworn thereto 0 6 8 Paid oath 0 1 6 Attending filing supplemental petition and affidavit 0 6 8 Paid filing petition and affidavit 0 5 0 Attending for office copy petition 0 6 8 Paid for same under seal 1 0 0 Attending Mr. and Messrs. arranging appointment to serve parties 0 6 8 19. Service of supplemental petition on respondent at 0 5 0 The like on co-respondent 0 5 0 Attending paying respondent’s costs up to trial and afterwards agreeing same 0 13 4 Attending appointment to fix security for respondent’s costs of trial, when registrar fixed further security at £20 0 6 8 22. Perusing answer of respondent to supplemental petition 0 6 8 Paid respondent’s costs up to setting down March 6. Attending registrar with request for lodg- ment to pay money into Court as security for respon- dent’s costs of trial 0 6 8 Attending Paymaster-General paying £20 into Court 0 6 8 Paid into Court, afterwards taken out by respondent’s solicitors for costs of trial 20 0 0 Attending searching cause list during sittings 0 13 4 Term fee (agency) 1 1 0 Easter Sittings , 19 . April. Instructions for brief for petitioner 4 4 0 Drawing same (folios 40) 2 0 0 Fair copy for counsel (folios 40) 0 13 4 The like of pleadings and affidavits to accompany, toge- ther (folios 22) 0 7 4 Attending Mr. with brief 0 6 8 Fee to him and clerk 5 10 0 The like for conference 1 6 0 Attending searching cause list during sittings 0 13 4 Term fee (agency) 1 1 0 COSTS. 591 Trinity Sittings, 19 . £ s. d. £ s. d. Attending marking refresher on Mr. ’s brief 0 6 8 Fee to him 1 3 6 Drawing subpoena and praecipe and attending getting same sealed Paid parchment 0 1 0 Copy subpoena for service on 0 1 0 Service thereof at Cambridge 0 12 0 Copy subpoena for service on 0 1 0 Service thereof at Teignmouth (agency) 0 12 0 July 6. Attending searching Court minutes to ascertain if any answer filed by the co-respondent to the supplemental petition and found none 0 6 8 Paid searching 0 2 6 Drafting and engrossing affidavit of service of supple- mental petition and search for answer 0 6 8 Attending swearing 0 6 8 Paid oath 0 1 6 Attending filing affidavit of service and search, and no answer 0 6 8 Paid filing 0 2 6 Attending appointing conference with Mr. 0 6 8 Attending conference 0 13 4 Attending searching cause list during sittings, when on this day we found case would be in to-morrow’s list.. 0 13 4 Notice to 3 witnesses to attend trial 0 6 6 Attending telegraphing Mr. that case in to- morrow’s paper and to be at our office at 10 o’clock.. 0 3 4 Paid for message 0 0 10 Attending telegraphing that case in to-morrow’s list and to be at our office at 10.30 0 3 4 Paid for message 0 0 9 Writing in confirmation of telegram 0 3 6 7. Attending petitioner and witnesses on their calling and attending with them to Court, when case heard and decree nisi pronounced with costs against co- respondent, and petitioner to have the custody of the children of the marriage 2 2 0 Attending and settling with witnesses 0 6 8 11. Attending bespeaking office copy decree of Court.. 0 6 8 Paid for same 0 3 0 16. Copy decree for respondent’s solicitors 0 3 0 Service thereof 0 2 6 Copy decree for co-respondent’s solicitors 0 3 0 Service thereof 0 2 6 24. Attending bespeaking order under judge’s hand giving petitioner custody of the children, affidavits for same 0 6 8 Paid for order 0 5 0 of application to take the children out of the juris- diction 0 6 8 Drawing same 0 9 0 Engrossing same for swearing 0 3 0 Attending Mr. on his calling later in the day and with him before commissioner to be sworn thereto.. 0 6 8 Paid oath 0 1 6 592 PRACTICE IN MATRIMONIAL SUITS. Instructions for affidavit of Mr. in support of £ s. d. £ s. d. application 0 6 8 Drawing same 0 4 0 Engrossing same 0 14 Attending Mr. handing same to get sworn 0 6 8 Preparing summons for leave to take children out of jurisdiction and copy for the judge 0 5 0 Attending issuing 0 6 8 Paid issuing and for order to be made thereon 0 8 0 Copy and service of summons on respondent’s solicitors 0 3 6 Copy affidavit of Mr. for respondent’s solicitors 0 3 0 Copy affidavit of Mr. 0 1 4 August 2. Instructions to Mr. to support sum- mons for leave to take children out of the jurisdiction 0 6 8 Copy summons for him 0 1 0 The like brief and affidavit in support, together (folios 13) 0 4 4 Fee to him and clerk 2 4 6 Attending him 0 6 8 Attending taxing respondent’s costs of trial 0 6 8 3. Perusing 2 affidavits of respondent in opposition to summons to take children out of the jurisdiction (folios 14) 0 4 8 Brief copy affidavits for Mr. 0 4 8 Instructions for further affidavit of petitioner in opposi- tion to affidavit of respondent 0 6 8 Drawing same (folios 5) 0 5 0 Engrossing 0 1 8 Attending petitioner on his being sworn thereto 0 6 8 Paid oath 0 1 6 Aug. 1. Instructions for affidavit of Dr. in support of summons 0 6 8 6. Drawing same 0 3 0 Engrossing 0 10 Attending Dr. on his being sworn thereto 0 6 8 Paid oath 0 1 6 Brief copy of further affidavits of petitioner and Dr. for counsel, together (folios 8) 0 2 8 Attending him therewith 0 3 4 The like copies of affidavits for respondent’s solicitors 0 2 8 Attending summons when, after hearing counsel, judge adjourned same until Thursday next for respondent’s solicitors to answer our affidavits if thought advisable 0 6 8 8. Perusing further affidavit of respondent in opposi- tion to summons 0 1 8 Brief copy for counsel 0 1 8 9. Attending petitioner on his calling, and with him before the judge on adjourned hearing of summons, when his lordship made an order that petitioner be at liberty to remove the children out of the juris- diction of the Court and gave respondent her costs of the application 0 6 8 Paid filing 4 affidavits 0 10 0 Attending drawing up order for leave to take children out of the jurisdiction 0 6 8 Copy and service of order on respondent’s solicitors 0 3 6 Copy order for custody of children for service on respondent 0 2 0 Indorsing notice thereon and attending serving same oil her at 0 6 8 Term fee (agency) 1 1 0 COSTS. 593 Michaelmas Sittings , 19 . Nov. 7. Attending* taxing* respondent’s costs of peti- £ ,s. d. £ s. d. tioner’s application for leave to take the children out of the jurisdiction 0 13 4 Paid Term fee 1 1 0 Hilary Sittings, 19 . Jan. 15. Costs of making* decree nisi absolute and paid as allowed 2 3 10 Attending bespeaking office copy decree absolute 0 6 8 Paid sealing and for office copy 0 10 0 Attending for same 0 6 8 Paid filing affidavit of petitioner 0 2 6 Drawing this bill of costs and copies (folios 46) 2 6 0 Attending lodging 0 6 8 Paid lodging 0 2 6 Attending for appointment to tax 0 6 8 Notice of taxing, copy and service 0 4 0 Attending taxing 1 1 0 Attending for order for payment 0 6 8 Paid for order 0 5 0 Copy and service of order 0 3 6 Term fee 1 1 0 Letters, messengers, &c 1 1 0 Paid witnesses 6. Petitioner’s (Wife) Costs of Order for Permanent Alimony and Maintenance. Jan. 3. Instructions for petition for permanent alimony & s. d. £ s. d. and maintenance of children 0 6 8 Drawing and engrossing same, including copy to file 1 0 0 Attending petitioner on her signing petition 0 6 8 6. Attending filing petition in Divorce Registry and bespeaking copy under seal for service on the respondent 0 6 8 Paid filing 0 2 6 Paid for office copy petition under seal 0 10 6 Attending for same 0 6 8 Personal service of the petition on respondent at and mileage 0 8 0 25. Perusing respondent’s answer 0 6 8 31. Attending obtaining appointment to fix permanent alimony and maintenance 0 6 8 Paid registrar’s fee 0 10 0 Notice of appointment, copy and service 0 4 0 Feb. 10. Attending appointment, when amount of re- spondent’s income ascertained, but appointment ad- journed for a week to enable parties to agree as to disposal of house 0 13 4 D.M.C. 38 594 PRACTICE IN MATRIMONIAL SUITS. 17. Attending adjourned hearing before the registrar, £ s. d. £ s. d. when he fixed the permanent alimony and mainten- ance, subject to a reduction of £ fixed for per- manent alimony on the respondent putting the peti- tioner into legal possession of the house 0 13 4 18. Attending drawing up order 0 6 8 Paid for same 0 5 0 Copy order for service on the respondent 0 1 4 Service thereof on him at Peckham and mileage 0 6 0 Drawing costs and copies (folios 8) 0 8 0 Attending filing 0 6 8 Paid filing 0 2 6 Attending taxing 0 6 8 Attending for order for payment 0 6 8 Paid for order 0 5 0 Copy and service of order and mileage 0 6 0 Term fee 1 1 0 7. Petitioner’s (Wife) Costs of Applications to enforce Order for Alimony and of Petition to vary Order. Trinity Sittings, 19 . July 30. Attending respondent on his calling, when he £ s. d. said he intended applying to reduce the alimony allotted, and we told him of our application to charge his pension, and he offered to pay £ on account of arrears of alimony and maintenance if we would withdraw the application, and we promised to obtain petitioner’s instructions Writing respondent that we would accept £ on account of overdue alimony and agree to withdraw our proceedings to charge his pension if the £ paid at once Attending respondent on his calling, and he paid us £ on account of alimony, and giving receipt for same Perusing petition to vary order for alimony served by respondent Perusing affidavit verifying petition to vary order for alimony Aug. 5. Instructions for answer to petition to vary order for alimony, including copy to file Drawing same Engrossing for swearing (folios 6) Attending petitioner on her calling, reading same over to her, and with her before commissioner to be sworn thereto' Paid oath Attending filing answer to petition Paid filing Copy answer for respondent Service thereof Sittings’ fee 0 16 0 2 6 £ s. d. 0 6 8 0 3 6 0 6 8 0 6 8 0 6 8 0 6 8 1 0 0 0 2 0 0 6 8 0 6 8 0 2 0 0 2 6 0 15 0 COSTS. 595 Hilary Sittings , 19 . Jan. 19. Attending appointment before Mr. Begistrar £ s. d. £ s. d. j. i — i .i-i directed the respondent to file a further affidavit setting out fully the whole of his sources of income, as the petition did not fully set this out, and appoint- ment adjourned till the instant, respondent to file and serve us with a copy affidavit in the meantime 0 13 4 Perusing further affidavit of respondent in support of his petition 0 6 8 25. Instructions for affidavit in support of application for garnishee order nisi for non-payment of alimony. 0 6 8 Drawing same 0 6 0 Engrossing 0 2 0 Attending petitioner on her calling, and with her to be sworn to affidavit 0 6 8 Paid oath 0 1 6 Attending registrar reading over affidavit when he granted order nisi 0 6 8 Paid for order nisi 0 5 0 Attending drawing up order 0 6 8 Copy order nisi for service 0 1 0 Service thereof personally on manager of Bank.. 0 5 0 26. Attending hearing of garnishee order nisi when same made absolute on our filing affidavit of service and non-attendance of garnishees 0 6 8 Drawing affidavit of service and non-attendance of gar- nishees 0 6 8 Attending to be sworn 0 6 8 Paid oath and exhibit 0 2 6 Marking exhibit 0 1 0 Paid filing affidavit of service and non-attendance of garnishees 0 2 6 Attending filing 0 6 8 Attending drawing up order absolute 0 6 8 Paid for order 0 5 0 Copy garnishee order absolute for service 0 1 0 Service thereof on the manager of the Bank.. 0 5 0 27. Attending the manager of the Bank on his handing us cash for £ as ordered by the gar- nishee order, and giving receipt 0 6 8 Attending adjourned hearing to vary order for alimony, when matter further discussed, and registrar required information as to the amount of dividend likely to be paid by the Bank, and within what period 0 13 4 Writing liquidator of Bank for the information required by the registrar 0 3 6 Copy of reply from liquidator of Bank for re- spondent, as directed by registrar 0 1 0 Writing respondent therewith 0 3 6 Attending registrar giving him information received from liquidator of — Bank 0 6 8 On receipt of further letter from liquidator attending registrar therewith, when he thought we had better have the parties before him again before deciding, and directed us to give notice of appointment to respondent 0 6 8 Notice thereof, copy and service on respondent 0 4 0 38 ( 2 ) 596 PRACTICE IN MATRIMONIAL SUITS. Attending further hearing on application to vary order £ s. d. £ s. d» for alimony when same further discussed, and re- gistrar dismissed respondent’s application 0 6 8 Drawing costs and copies (folios 18) 0 18 0 Attending filing 0 6 8 Paid filing 0 2 6 Attending for appointment to tax 0 6 8 Notice of taxing, copy and service (mileage) 0 9 0 Attending taxing 0 6 8 Attending agreeing costs 0 6 8 Attending for order for payment 0 6 8 Paid for order 0 5 0 Copy and service of order (mileage) 0 9 0 Sittings’ fee 0 15 0 Drawing and engrossing affidavit of service of bill 0 6 8 Attending swearing 0 6 8 Paid oath and exhibit 0 2 6 Marking exhibit 0 1 0 Paid filing affidavit 0 2 6 8. Petitioner’s (Wife) Costs of Order Dismissing Motion. £ s. d. £ s. d . 189 . March 1. Instructions to oppose motion 0 6 8 Perusing affidavit to respondent in support 0 5 0 The like exhibit to affidavit 1 1 0 Drawing brief to oppose motion 0 10 0 Copy correspondence to accompany (folios 10) 0 3 4 Attending counsel therewith 0 6 8 Fee to Mr. with brief 3 5 6 The like for conference 1 6 0 Attending conference 0 13 4 5. Attending Court when motion made and dismissed with costs 0 13 4 Drawing costs and copies (folios 4) 0 4 0 Attending lodging 0 6 8 Paid lodging 0 2 6 Notice of taxing, copy and service, and mileage, serving costs at 0 9 0 Attending taxing and agreeing 0 6 8 Attending for order for payment 0 6 8 Paid for same 0 5 0 Copy and service of order and mileage 0 9 0 Sittings’ fee 0 15 0 COSTS, 597 9. Costs of the Respondent (Wife) to Date of Setting Down of Action for Trial. In the High Court of Justice. Probate, Divorce, and Admiralty Division. (Divorce.) Between, &c. Hilary Sittings , 19 . & s. d. & s. d. Jan. 1. Instructions to defend 0 6 8 Perusing petition 0 6 8 The like copy citation 0 1 8 8. Attending entering appearance 0 6 8 Paid 0 2 0 Notice thereof, copy and service 0 4 0 Instructions for answer to petition 0 6 8 Drawing and engrossing same 1 0 0 Copy for counsel 0 1 0 Fee to counsel to settle answer 1 3 6 Attending him 0 3 4 10. Instructions for affidavit in support of answer 0 6 8 Drawing and engrossing same 0 6 8 Attending on being sworn thereto 0 6 8 Paid oath 0 1 6 Attending filing answer and affidavit 0 6 8 Paid filing answer 0 2 6 The like affidavit 0 2 6 Copy answer for service 0 1 0 Service thereof 0 3 4 23. Perusing replication 0 6 8 Feb. 5. Drawing bill of costs and copy for taxation (folios 8) 0 5 4 Copy for husband’s solicitors 0 2 8 Attending to file 0 6 8 Paid filing 0 2 6 Copy and service of appointment to tax 0 4 0 Attending taxing and agreeing amount of taxed costs, Attending drawing up order for security 0 6 8 Paid for order and reference fee 0 15 0 Copy and service 0 3 6 Term fee 0 15 0 598 PRACTICE IN MATRIMONIAL SUITS. 10. Respondent’s (Wife) Costs on Petitioner’s Appli- cation for Leave to file Supplemental Petition. Between A. B., petitioner, and C. B., respondent, and E. F., co-respondent. Hilary Sittings , 19 . Feb. 15. Attending petitioner’s summons for leave to £ s. d. £ s. d. file supplemental petition, same adjourned for affidavit 0 6 8 Perusing affidavit of petitioner’s solicitors 0 1 4 16. Attending adjourned summons (order made) 0 6 8 20. Perusing supplemental petition 0 6 8 Instructions for answer to supplemental petition 0 6 8 Drawing and engrossing same 1 0 0 Attending filing answer 0 6 8 Paid 0 2 6 Copy answer for service 0 2 0 Service thereof 0 3 4 Attending searching cause list 0 13 4 Easter Sittings , 19 . Instructions for brief 1 1 0 Drawing brief (folios 36) 1 16 0 Fair copy for counsel 0 12 0 Fair copy pleadings for counsel (folios 30) 0 10 0 Attending searching cause list 0 13 4 Trinity Sittings, 19 . July 5. Fee to counsel with brief and clerk 3 5 6 Attending him 0 6 8 Attending appointing conference 0 3 4 Conference fee to counsel and clerk 1 6 0 Attending conference 0 13 4 Attending searching cause list 0 13 4 6. Writing respondent informing her that cause will be in paper 0 3 6 7. Attending trial, cause heard 1 1 0 Drawing costs and copy for taxation (folios 9) 0 6 0 Copy for service 0 3 0 Attending in registry filing costs 0 6 8 Paid stamp on filing 0 2 6 Notice of appointment to tax, copy and service 0 4 0 Attending taxing 0 6 8 Attending agreeing costs as taxed 0 6 8 Drawing payment schedule in duplicate and attending registrar to sign same 0 6 8 Attending paymaster bespeaking cheque 0 6 8 Attending receiving cheque 0 6 8 Term fee 0 15 0 Paid taxing fees COSTS. 599 11. Respondent’s (Wife) Costs of Application by Petitioner for leave to take Children out of the Jurisdiction of the Court. Between A. B., petitioner, and C. B., respondent, and E. F., co-respondent. Trinity Sittings, 19 . July 30. Perusing affidavit of petitioner in support of £ s. d. £ s. d. summons for leave to take children out of jurisdiction (folios 10) 0 3 4 Instructions for affidavit of respondent in opposition 0 6 8 Drawing and engrossing affidavit in opposition (folios 10) 0 13 4 Copy for service 0 3 4 August 2. Attending respondent on her swearing same 0 6 8 Paid oath 0 1 6 Copy petitioner’s summons for counsel 0 1 0 The like petitioner’s affidavit (folios 10) 0 3 4 The like respondent’s affidavit (folios 10) 0 3 4 Drawing and copy observations for counsel 0 6 8 Fee to Mr. therewith and clerk 2 4 6 Attending him 0 6 8 Paid conference fee and clerk 1 6 0 Attending conference 0 13 4 Attending respondent taking instructions for further affidavit 0 6 8 Drawing and engrossing same (folios 6) 0 8 0 Attending respondent on her swearing same 0 6 8 Paid oath 0 1 6 Copy for service 0 2 0 Copy for counsel 0 2 0 Paid filing affidavits of respondent (2) 0 5 0 6. Attending summons, same adjourned to enable re- spondent to answer further affidavits filed on behalf of petitioner 0 6 8 Perusing further affidavit of petitioner (folios 6) 0 2 0 Copy for counsel 0 2 0 Perusing affidavit of Dr. (folios 3) 0 1 0 Copy for counsel 0 1 0 Instructions for further affidavit by respondent in answer to the affidavits of Dr. and petitioner.. 0 6 8 Drawing and engrossing same (folios 6) 0 8 0 Copy for service 0 2 0 Copy for counsel 0 2 0 Attending respondent on her swearing same 0 6 8 Paid oath 0 1 6 Paid filing 0 2 6 9. Perusing affidavit of Dr. (folios 10) 0 3 4 600 PRACTICE IN MATRIMONIAL SUITS. Attending adjourned summons when judge made order £ s. d. £ s. d. giving petitioner liberty to take the children out to ; and, on the application of respondent’s counsel, it was conceded that she should be allowed to see the children before they were taken away on certain conditions, and the respondent’s costs were allowed, and counsel certified for 0 6 8 Perusing order 0 2 0 Drawing costs and copy for taxation (folios 15) 0 10 0 Copy for service 0 5 0 Attending in registry filing costs 0 6 8 Paid stamp on filing 0 2 6 Notice of taxing, copy and service 0 4 0 Attending taxing 0 13 4 Term fee 0 15 0 Table of Fees to be taken in the Conrt for Divorce and Matrimonial Causes. Citation. £ s. d. On every citation 0 5 0 For settling citation, or an abstract thereof for advertisement, or other advertisement: If 5 folios of 72 words or under 0 2 6 If above 5 folios, for each additional folio or part of a folio.. 0 0 3 Appearance. On entering appearance 0 2 6 On amending appearance 0 2 6 Pleadings. Filing a petition 0 5 0 Filing an answer 0 5 0 Filing a reply 0 5 0 Filing rejoinder or any further replication 0 5 0 Filing act on petition 0 5 0 Filing any writing to the act on petition by way of answer, reply, rejoinder, or conclusion 0 5 0 Filing joinder in demurrer 0 5 0 On amending or reforming pleadings 0 2 6 Evidence. Filing interrogatories (each set) 0 5 0 Filing deposition of each witness 0 2 6 COSTS. 601 Protection Orders. Filing application for an order for the protection of a wife’s £ s. d. earnings and property 0 5 0 For entering the order on such application 0 5 0 For the order under seal of the Court 0 10 0 Questions for Jury. For settling the issues of fact to be tried by a jury 0 10 0 Filing parchment copy of the issues of fact as settled 0 2 6 Filing panel 0 2 6 Setting Down. Setting a cause down for hearing or trial 0 5 0 Withdrawal. On withdrawal of a cause after same is set down for hearing or trial, to be paid by the party at whose instance it is withdrawn. 0 5 0 SUBPCENA. On every subpoena 0 2 6 Hearing or Trial. On the hearing or trial of a cause: From the party setting down the cause for hearing or trial... 1 10 0 If the hearing or trial continues more than one day, for each day : From the same party 1 0 0 Judge’s Notes. Producing the judge’s notes 0 5 0 Entering Decree, Verdict, or Order. Entering sentence or final decree in a cause, to be paid by the successful party 0 10 0 Entering verdict, if 5 folios of 72 words or under 0 5 0 If exceeding 5 folios, for each additional folio or part of a folio. ..010 Entering order for the examination of a witness or witnesses 0 5 0 Entering any decree or order for alimony 0 5 0 Entering order directing how damages shall be applied 0 5 0 Entering order providing for custody, maintenance, or education of children, if 5 folios of 72 words or under 0 5 0 Entering any order made under the authority given by 20 & 21 Viet. c. 85, ss. 32 & 45, and by 22 & 23 Viet. c. 61, s. 5, if 5 folios of 72 words or under 0 5 0 If either of the above orders exceed 5 folios, for each additional folio or part of a folio 0 1 0 Entering any minute, order, or decree in the Court Book other than minutes, orders, or decrees specified 0 2 6 Entering any order of the registrars of the Court of Probate the same fee as would be payable for entering a similar order made by the judge. 602 PRACTICE IN MATRIMONIAL SUITS. Orders. For any order issuing under the hand of the Judge Ordinary or of & s. d. one or more of the registrars, except orders made on summons.. 0 5 0 Bill of Exceptions. Bill of exceptions signed by the judge 0 5 0 Commission or Requisition. On every commission or requisition issuing under seal of the Court 10 0 Taking Evidence. For taking the evidence of one or more witnesses before the registrar, and within three miles of the General Post Office, for each day 3 3 0 If beyond that distance, for each day, in addition to travel- ling expenses 5 5 0 If for part of a day only, such smaller fee as the registrar in his discretion shall think proper. References to the Registrars. On each reference to ascertain the amount to be paid or secured to a wife to cover her costs. For the registrar’s attendance 0 5 0 For his report thereon 0 2 6 On each reference for any other inquiry before the registrars. For registrar’s attendance 1 0 0 For every hour or part of hour after the first hour a further fee of 0 10 0 For the registrar’s report, if 5 folios of 72 words or under... 0 5 0 If exceeding 5 folios, for every additional folio or part of a folio 0 2 0 Summonses. On each summons 0 2 6 For an order on summons, including the entry of same 0 2 6 If a final order in the cause 0 10 0 Motions. Filing case for motion 0 5 0 Entering any minute or order on motion other than orders specified 0 5 0 If a final order in the cause 0 10 0 Writs. Writ of attachment 0 7 6 Writ of sequestration 1 0 0 Writ of fieri facias 1 0 0 Appeals. On lodging instrument of appeal 0 10 0 COSTS. 603 Certificate. For every certificate under the hand of the Judge Ordinary, or £ s. d. of one of the registrars of the principal registry of the Court of Probate 0 2 6 Filing. Filing every notice 0 1 0 Filing exhibits, for each exhibit 0 1 0 Filing every affidavit or other document brought into Court or deposited in the registry for filing which no fee is before specified 0 2 6 Searches. Search in each Court Book, if within the last five years 0 10 If at an earlier period than within the last five years 0 2 6 In case the Court Books to be searched or the documents required are not in the registry, in addition to the above.. 0 2 6 Office Copies and Extracts. For every office copy or extract of a minute, order, or decree entered in a cause, or of any document filed in a cause, or deposited in the registry: If 5 folios of 72 words or under 0 2 6 If exceeding 5 folios of 72 words, per folio 0 0 6 If on parchment, in addition to the above, for every folio and part of a folio of 72 words 0 0 3 For the seal of the Court affixed to any minute, order, or decree, or to any office copy 0 5 0 Taxing Costs. Taxing every bill of costs: If 5 folios of 72 words or under 0 2 6 If exceeding 5 folios of 72 words When taxed as between party and party, for every folio and part of a folio of 72 words 0 0 6 When taxed as between practitioner and client, for every folio and part of a folio of 72 words 0 1 0 For postponement of appointment for taxation of costs, to be paid by the party at whose instance the appointment is postponed: If the bill of costs is 5 folios of 72 words or under 0 10 If exceeding 5 folios of 72 words, and under 15 folios 0 2 6 If exceeding 15 folios 0 5 0 Appointment of Officers. On appointment of a commissioner for taking oaths 1 0 0 For registering appointment of a commissioner for taking oaths in the Court of Chancery 0 5 0 Oaths. For administering an oath to each deponent 0 1 0 For marking each exhibit 0 1 0 604 PRACTICE IN MATRIMONIAL SUITS. AFFI- DAVITS. Evidence in a matrimonial cause taken on affidavits. Time for filing. In undefended cases. Counter affidavits : time for filing. Copies to be delivered to other parties on day of filing. Affidavits in reply cannot be filed with- out leave. Order to cross- examine on ; application for. Practice as to Evidence. [/See on the subject of Evidence generally, Part I., Chap. XVII., ante, pp. 251 — 276.] Power to allow the evidence in a matrimonial cause to be taken wholly or partially by affidavit is given by 20 & 21 Viet. c. 85, s. 46. {See ante, p. 251.) By rule 51, “When the Judge Ordinary has directed that all or any of the facts set forth in the pleadings be proved by affidavits, such affidavits shall be filed in the registry within eight days from the time when such direc- tion was given, unless the J udge Ordinary shall otherwise direct.” This rule was amended by rule 188, which is in the following terms: — “ In an undefended cause, when directions have been given that all or any of the facts set forth in the petition be proved by affidavits, such affidavits may be filed in the registry at any time up to ten clear days before the cause is heard.” By rule 52, “ Counter affidavits as to any facts to be proved by affidavit may be filed within eight days from the filing of the affidavits which they are intended to answer.” By rule 53, “ Copies of all such affidavits and counter affidavits shall on the day the same are filed be delivered to the other parties to be heard on the trial or hearing of the cause, or to their proctors, solicitors, or attorneys.” By rule 54, affidavits in reply to such counter affidavits cannot be filed without permission of a registrar. And by rule 55, “Application for an order for the attendance of a deponent for the purpose of being cross- examined in open Court shall be made to the judge, on summons.” EVIDENCE. 605 The instances in which the Court has allowed cases to be proved wholly by affidavits have been extremely rare, but it has not been uncommon to allow a case to be partly proved by affidavits. (See ante, pp. 257, 258.) The following rules apply to affidavits generally: — By rule 138, “ Every affidavit is to be drawn in the first person, and the addition and true place of abode of every deponent is to be inserted therein.” [If the deponent gives an illusory address, or no address at all, the Court will not allow the affidavit to be used : Hyde v. Hyde, Fellgate and others (1888), 59 L. T. 523. The affidavit of a married woman should state the descrip- tion of her husband: Ellam v. Ellam (1889), 58 L. J. P. 56; 61 L. T. 338. The wording of this rule is not very intelligible, but it means that the description of the deponent must be added to his address .] The following descriptions, amongst others, have been held to be sufficient: “Merchant”; “manufacturer”; “ managing clerk to, &c.”; “clerk to ”; “of no occupation.” Deponent must state his occupation (if any). The following have, amongst others, been held to be insufficient: “Assessor”; “acting as managing clerk to, &c.”; “(articled clerk”; “solicitor’s clerk” (unless the address given be certified to be the private address of the deponent, the form should be “clerk to A. B., &c.”); 4 ‘ gentleman ” ; “ esquire . ’ ’ [ For forms of affidavits, see Form 7, p. 298; Form 15, p. 307; Form 18, p. 313; Form 19, p. 314; Form 27, p. 329; Form 29, p. 334; Form 30, p. 338; Form 39, p. 352; Form 44 (2), (3), pp. 364, 365; Form 46, p. 371; Form 47, p. 372; Form 48, p. 372; Form 57, p. 393; Form 63, p. 408; Form 87, p. 450; Form 88, p. 451; Form 89, p. 455; Form 90, p. 459; Form 105, p. 522; Form 114, p. 556; Form 118, p. 612; Form 127, p. 632.] Affidavits. Cases partly verified by. Must be sworn in first person,, and give true address and description of deponent. Good descriptions.. Bad descriptions. Affidavits, forms of. 606 PRACTICE IN MATRIMONIAL SUITS. Affidavits. Jurat, general form of. Affidavit, joint; names of persons must be inserted in jurat, except where all sworn at one time by same officer. Interlinea- tions, altera- tions, or erasures in body of. By blind or illiterate deponents. Form 117. General Form of Jurat. Sworn at ( insert full particulars of place of swearina) the day of ,1911. Before me, (Signature and full description of the authorized person before whom the affidavit is sworn.) [Where, an affidavit has to be re- sworn, it is not necessary to strike out the first jurat, but merely to write out a fresh one.'] By rule 139, “In every affidavit made by two or more deponents, the names of the several persons making it shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer, it shall be sufficient to state that it was sworn by both (or all) of the above-named deponents.” [The wording of the above rule is confusing. It merely means that if the jurat is in the following form, “ Sworn by both (or all) the above-named deponents ” it will suffice.] By rule 140, “ No affidavit having, in the jurat or body thereof, any interlineation, alteration, or erasure, shall, without leave of the Court or of one of the registrars, be filed or made use of in any matrimonial cause or matter, unless the interlineation or alteration — other than by erasure — is authenticated by the initials of the officer taking the affidavit, nor, in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are re-written and signed or initialled in the margin of the affidavit by the officer taking it.” By rule 141, “Where an affidavit is made by any person who is blind, or who, from his or her signature or otherwise, appears to be illiterate, the registrar, commis- EVIDENCE. 607 sioner, or other authority before whom such affidavit is made, is to state in the jurat that the affidavit Was read in the presence of the party making the same, and that such party seemed perfectly to understand the same, and also made his or her mark or wrote his or her signature thereto in the presence of the registrar, commissioner, or other authority before whom the affidavit was made.” The form of jurat in this case will be “ Sworn by the above-named A. B. at , on the day of , 19 , after this affidavit had been read over to him ( or her) when he (or she) seemed perfectly to understand the same, and made his ( or her) mark thereto in my presence.” The rules are silent as to the practice where a deponent is deaf and dumb. If the deaf and dumb deponent can read and write the matter is simple. If otherwise, the commissioner or other authority must be satisfied by an interpreter that such deponent understands fully what he or she is doing. In either case the course that has been pursued should be clearly set out in the jurat. (For form of oath of interpreter , see post, p. 619.) The mention in the above rule of the “ authority before whom the affidavit was made,” leads naturally to the consideration of who the proper authorities to swear affidavits are. The matter is at present regulated by 52 Viet. c. 10 (Commissioners for Oaths Act, 1889); and 54 & 55 Viet, c. 50 (Commissioners for Oaths Act, 1891), both of which statutes are printed in extenso in Appendix B. to the present edition. \By 52 Viet. c. 10, sects. 20 to 23 inclusive of 21 & 22 Viet. c. 108, are repealed .] In England affidavits in matrimonial causes may be sworn before any commissioner to administer oaths in the Supreme Court of Judicature; any registrar or district registrar, or duly authorized officer of the Probate, Divorce and Admiralty Division; and by 20 & 21 Viet. c. 77, Affidavits. Ibid . Form of jurat. Deaf and dumb deponent. Affidavits, before whom sworn. Commission- ers for Oaths Acts, 1889, 1891. Before whom sworn in England. 608 PRACTICE IN MATRIMONIAL SUITS. Affidavits. In Scotland, Ireland, Isle of Man, Channel Islands, Colonies, &c. In foreign parts outside H.M. domi- nions. British consul in Germany- forbidden to administer oath. Before whom not to be sworn. Must be properly stamped. Where special time fixed for filing. s. 27, a surrogate of any Ecclesiastical Court acting as such on January 21st, 1858, if any are still to be found. “ In Scotland, Ireland, Isle of Man, Channel Islands , Colonies, and any place out of England under the dominion of Mis Majesty. — Before any Court, judge, notary public, or any person lawfully authorized in such country to administer oaths. And also in the Isle of Man and Channel Islands, before certain other authorized persons. “In foreign parts out of His Majesty's dominions . — Before every British ambassador, envoy, minister, charge d’affaires, secretary of embassy or legation, consul, vice- consul, acting consul, pro-consul, and consular agent. Where there is no such person, before any foreign local magistrate or other person having authority to administer an oath there.” [Where by German law a British consul is not allowed to administer an oath, the affidavit may be sworn before a German judge: In the Goods of Fawcus (1884), 9 P. D. 241; 54 L. J. P. 47.] By rule 142, “ No affidavit is to be deemed sufficient which has been sworn before the party on whose behalf the same is offered, or before his or her solicitor, or before a partner or clerk of his or her solicitor.” By rule 143, “ Solicitors, and their clerks respectively, if acting for any other solicitor, shall be subject to the rules and regulations in respect of taking affidavits which are applicable to those in whose stead they are acting.” By rule 144, “ No affidavit can be read or used unless the proper stamps to denote the fees payable on filing the same are delivered with such affidavit.” By rule 145, “ Where a special time is fixed for filing affidavits, no affidavit filed after that time shall be used unless by leave of the judge.” And by rule 146, “ The above rules and regulations in respect to affidavits shall, so far as the same are EVIDENCE. 609 applicable, be observed in respect to affirmations and declarations to be read or used in the Court for Divorce and Matrimonial Causes.” \Only copies of affidavits need be served unless otherwise specifically directed or ordered .] Oaths and affirmations are now regulated as to their form by 51 & 52 Viet. c. 4 (Oaths Act, 1888); and by 9 Edw. VII. c. 39 (Oaths Act, 1909), which are printed in extenso in Appendix C, pp. 723, 765. The usual form of oath when swearing a deponent to an affidavit is: — “ You do swear that this is your true name and handwriting, and that the contents of this affidavit are true. So help you God.” The book is then kissed. But by sect. 5 of 51 & 52 Viet. c. 4, deponents are allowed to swear in the Scotch form. In that case no book is used, but the deponent lifts up his right hand above his head and repeats the oath after the person who administers the oath to him. The form generally given is: — “ I swear to Almighty God, that the contents of this my affidavit are true.” Sect. 5 of the Oaths Act, 1888, merely gives permission to any person to whom an oath is administered to swear with uplifted hand, if he desires to do so, “ in the form and manner in which an oath is usually administered in Scotland.” The full Scotch form is — “ I swear to Almighty God, as I shall answer to Him at the Great Day of Judgment,” and there certainly is nothing in the statute to justify its curtailment . Affidavits. Copies only need be served. Oaths and Affirmations. Oaths Acts, 1888, 1909. Usual form of oath for affidavit. Swearing in Scotch form. Oath, Scotch form, obser- vations as to. Oaths Act, 1888, s. 5. Proper form. D.M.C. 39 610 PRACTICE IN MATRIMONIAL SUITS. Affidavits. Affirmations, form of. COMMIS- SIONS. Court may- issue commis- sions or give orders for examination of witnesses abroad or unable to attend. If the deponent desires to affirm, the form will be as follows: — “ I, A. B., do solemnly, sincerely and truly declare and affirm that the contents of this my affidavit are true:” and the form in lieu of jurat will be — “Affirmed at this day of , 1911. Before me, &o.” [/See 51 & 52 Viet. c. 46, ss. 2, 4.] Sect. 47 of the Matrimonial Causes Act, 1857 (20 & 21 Viet. o. 85), provides for the examination of witnesses — who are abroad or unable to attend — by examiners appointed by the Court: “ Provided, that where a witness is out of the jurisdiction of the Court, or where, by reason of his illness or from other circumstances, 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 com- mission 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 exami- nation 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 examination of witnesses in actions de- pending in such Courts, and to enforce such examination, and all the provisions of the said Acts, and of any other Acts for enf orcing or otherwise applicable to such exami- nation and the witnesses examined, shall extend and be EVIDENCE. 611 applicable to the Court and to the examination of wit- nesses 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 Westminster, and the matter before it were an action pending in such Court.” When the order is for the examination of a witness outside the jurisdiction of the Court, it is termed “ a commission when it is for the examination of a witness within the jurisdiction of the Court, it is termed “an examination .” Commissions or requisitions to examine witnesses are issued whenever it is shown to the satisfaction of the Court that the witness whose evidence it is desired to take cannot well be brought into Court, or if it is probable that his evidence would be lost if not taken at once. They will be ordered in cases where witnesses are about to leave the country, are likely to die, or are incapacitated by illness, old age, or infirmity, or for any other good and valid reason from coming into Court. [On being satisfied by affidavit of the urgency of the matter, the Court gave a wife leave to send a commission abroad before service of citation, at her own expense, re- serving the question of costs and also of the admissibility of such evidence at the trial ( Brown and another v. Brown (1864), 33 L. J. P. 203, followed): Vallentine v. Vallentine, (1901) P. 283; 70 L. J. P. 89; 85 L. T. 171.] The following rules apply to commissions or requisitions for the examination of witnesses out of the jurisdiction of the Court: — By rule 132, “ Application for a commission or requisi- tion to examine witnesses who are out of the jurisdiction of the Court is to be made by summons, or if on behalf of a petitioner proceeding in default of appearance without summons, before one of the registrars, who will order such commission or requisition to issue or refer the application to the judge, as he may think fit.” [If a cause is actually in the list, at all events if it is 39 (2) Commissions. Explanation of terms. When issued. Issued before service of citation. Application for, to be made by summons, except in undefended cases. 612 PRACTICE IN MATRIMONIAL SUITS. Commissions. Affidavit must set out names of witnesses. Affidavit in support of summons, &c. to examine witness. approaching its turn for hearing , the registrar usually refers the matter to the judge. Every affidavit on which an application to examine wit- nesses in or out of the jurisdiction is founded, should set out the names of the witnesses it is proposed to examine: Ryves and Ryves v. Attorney-General (1865), L. R. 1 P. & D. 23; 35 L. J. P. 6; 13 L. T. 305.] Form 118. Affidavit in support of Summons for Commission, &c. to examine Witness. [Heading in Cause .] I, of , in the county of , make oath and say, that, — 1 . I am the solicitor for the petitioner in this suit, and have the management thereof . 2. On the day of , a.d. 19 , the petitioner filed his petition in this suit alleging' against the respondent that (state grounds of petition ), and praying (as the case may he) . 3. On the day of , a.d. 19 , the respondent filed her answer thereto in which ( state effect of answer ) . 4. Issue was joined herein on the said answer on the day of 5. W. W., of , is a material and necessary wit- ness for the petitioner as I am advised and verily believe, and I am 1 advised and verily believe ;that the petitioner cannot safely proceed to trial with- out his evidence. 6. That the said W. W. is dangerously ill and not expected to recover (or whatever rriary he the ground for applying for the commission to examine: in case of illness, there should he an affidavit of a medical man to the fact, or else a certificate ob- tained from him and deposed to). Sworn, &c. EVIDENCE. 613 [An affidavit showing the necessity of the commission or Commissions. examination is imperative in every case, whether the sum- mons is by consent or not, as well as in cases where the necessary in petitioner is proceeding in default ( see rule 132, supra).] every case. By rule 133, “A commission or requisition for exami- nation of witnesses may be addressed to any person to be nominated and agreed upon by the parties in the cause and approved ,of by the registrar, or for want of agree- ment to be nominated by the registrar to whom the application is made.” [Where a commission was addressed to “ The Judge of the Supreme Court of Calcutta,” whereas it should have been Commissioner to be agreed upon by parties, and approved by registrar, or nominated by registrar, for want of agreement. Wrongly addressed. addressed to “ The Judges of the High Court of Judicature, at Port William, in Bengal,” the “ Supreme Court of Cal- cutta ” having been abolished, it was held a sufficient de- scription: Wilson v. Wilson (1884)', 9 P. D. 8; 49 L. T. 430.] By rule 134, “ The commission or requisition is to be How drawn up and prepared by the party applying for the P r ®P ared * ^ same, and a copy thereof 1 shall be delivered to the parties amending of. entitled to cross-examine the witnesses to be examined thereunder two clear days before such commission or requisition shall issue, under seal of' the Court, and they or either of them may apply to one of the registrars by summons to alter or amend the commission or requisition, or to insert any special provision therein, and the registrar shall make an order on such application or refer the matter to the judge.” [Notice served on respondent’s solicitor at 2 p.m. on Insufficient Saturday, in London, that witness was to be examined at notice of . Bath on the following Monday, held insufficient, and deposi- of \dtness° n tion rejected by Court: Fitzgerald v. Fitzgerald (1863), 3 S. & T. 400; 33 L. J. P. 39; 10 L. T. 510.] By rule 135, “ Any of the parties to the cause may Any party to apply to one of the registrars by summons for leave to apply for 7 join in a commission or requisition, and to examine leave to witnesses thereunder ; and the registrar to whom the 30111 m ‘ 614 PRACTICE IN MATRIMONIAL SUITS. Commissions. Not to issue without direc- tion of regis- trar, after issue of sum- mons by other parties for leave to join in. Commission (or examina- tion), wife’s costs of. Provision for securing. application is made may direct the necessary alterations] to be made in the commission or requisition for that purpose, and settle the same, or refer the application to the judge.” By rule 136, “ After the issuing of a summons to show cause why a party to the cause should not have leave to join in a commission or requisition, such commission or requisition shall not issue under seal without the direction of one of the registrars.” And by rule 137, “In case a husband or wife shall apply for and obtain an order or a commission or requisi- tion for the examination of witnesses, the wife shall be at liberty, without any special order for that purpose, to apply by summons to one of the registrars to ascertain and report to the Court what is a sufficient sum 1 of money to be paid or secured to the wife to cover her expenses in attending at the examination of such witnesses in pursu- ance of such order, or in virtue of such commission or requisition, and such sum of money shall be paid or secured] before such order or such commission or requisition shall issue from the registry, unless the judge, or one of the registrars in his absence, shall otherwise direct.” [$ee also rule 198.] By rule 198, amending rule 137, “ The registrar to whom a commission or requisition for examination of witnesses is referred for settlement, on application on behalf of the wife, may proceed at once and without summons to ascertain what is a sufficient sum of money to be paid or secured to her to cover her expenses in attending at the examination of such witnesses, and shall thereupon issue an order upon the husband to pay or secure the said sum within a time to be fixed in such order.” EVIDENCE. 615 Form 119. Commission for Examination of Witnesses. In the High Court of Justice, Probate, Divorce, and Admiralty Division. (Divorce.) A. B. v. C. D. Or, Between A. B., petitioner, and C. D., respondent. George V., by the grace of God of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the seas, King, Defender of the Faith. To ( here set forth the name and proper description of the commissioner), greeting. Whereas a certain cause is now depending in the Probate, Divorce, and Admiralty Division of our High Court of Justice between A. B., petitioner, and C. B., respondent, and R. S., co-respondent, wherein the said A. B. has filed his petition praying for a dissolution of his marriage with the said C. B. {or otherwise, as in the prayer of the petition). And whereas by an order made in the said cause on the day of ,19 , on the application of the said A . B . it was ordered that a commis- sion {or requisition) should issue under seal of our said Court for the examination of {here insert name and address of one of the persons to he examined) and others as wit- nesses to be produced on the part of the said A. B., the petitioner, in support of his said petition (saving all just exceptions). Now know ye that we do by virtue of this commission {or requisition) to you directed, authorize {or request) you within thirty days after the receipt of this commission {or requisition) at a certain time and place to be by you appointed for that purpose with power of adjournment to such other time and place as to you shall Commissions. For exami- nation of witnesses, form of. 616 PRACTICE IN MATRIMONIAL SUITS. Commissions. For exami- nation of witnesses, form of. Brought in draft to Divorce Registry to be settled by registrar. seem convenient, to cause the said witnesses to come before you and to administer to the said witnesses respectively an oath truly to answer such questions as shall be put to them touching the matters set forth in the said petition (a true and authentic copy whereof, sealed with the seal of our said Court, is hereunto annexed), and such oath being administered we do hereby authorize ( or request) and em- power you to take the examination of the said witnesses touching the matters set forth in the said petition, and to reduce the said examination or cause the same to be reduced into writing. And that for the purpose aforesaid you do assume to yourself some notary public or other lawful scribe as and for your actuary in that behalf if to you it should seem meet and convenient so to do. And the said examination being so taken and reduced into writing as aforesaid, and subscribed by you, we do require (or request) you forthwith to transmit the said examination, closely sealed up, to the Divorce Registry of our said Court at Somerset House, Strand, in the county of Middlesex, together with these presents. And we do hereby give you full power and authority to do all such acts, matters, and things as may be necessary, lawful, and expedient for the due execution of this our commis- sion (or requisition). Dated at London the day of , in the year of our Lord one thousand nine hundred and , and in the year of our reign. (Signed) X. Y., Registrar. [ The above is taken from the Appendix to the official copy of the Rules . ] Having been prepared by the solicitor for the party applying for it pursuant to rule 134, the commission is brought in draft to the Divorce Registry to be settled by the registrar, and afterwards engrossed on parchment and returned to the registry with the draft and praecipe. These are all then forwarded to the registrar who settled EVIDENCE. 617 them, for his signature. The commission, draft, &c. is then sent to be sealed, and can be obtained the next day at the office of the sealer at Somerset House. A copy of the petition under seal, and any other plead- ing necessary for the commissioner to have at the exami- nation, should be obtained and accompany the commission. If it is desired to stay the hearing of the case until the return of the commission, it should form part of the application on the hearing of the summons. A commission is sometimes directed to A. B., or some fit and proper person to be nominated by him; and in the event of A. B. not acting himself, the appointment by him of a nominee should either be endorsed on the commission or be annexed to it. By virtue of the within commission to me directed, I, A. B., of hereby nominate C. D., of , to take such commission. (Signed) A. B. The commission is sent out by the solicitor or party in person who has obtained it, either to some local solicitor or other agent, with any instructions he may think necessary, or else to the commissioner direct. On receipt of the commission the commissioner should arrange some convenient appointment for the attendance of and examination of the witnesses, to whom notice of such appointment should be at once given. [See as to notice, Fitzgerald v. Fitzgerald (1863), 3 S. & T. 400; 33 L. J. P. 39; 10 L. T. 510.] The commissioner, as provided by the commission, will administer to each witness the following oath: — “You are true answer to make to all such questions as shall be asked you, without favour or affection to either party,, and therein you shall speak the truth, the whole truth, and nothing but the truth. So help you God.” \Every commissioner and examiner is empowered to Commissions. Copy of peti- tion and other necessary documents to be sent to commissioner. Staying proceedings. Appointment by commis- sioner of his nominee. Form of nomination. Commission sent out by solicitor or party in person. Duties of commissioner. Oath of witness. Swearing or affirming. 618 PRACTICE IN MATRIMONIAL SUITS. Commissions. Evidence, how taken. Exhibits. Appointment of clerk or scribe. Oath of clerk or scribe. Appointment of clerk or scribe must be in writing, and be administer oaths and affirmations for the purposes of such commission or examination. As to swearing witnesses in the Scotch form, and as to oaths and affirmations generally, see ante, pp. 609, 610.] The evidence should be taken in narrative form, not question and answer, unless objection is raised; then the question should be set out, as also the answer. The witness should sign each page of his deposition after the same has been read over to him. Any documents, letters, writings or photographs pro- duced at the examination should be marked by the com- missioner and returned with the commission. Commissioners and examiners as a rule take down the evidence themselves; but it is competent to them, if they so please, to appoint a clerk or scribe to take down the depositions for them. If such clerk or scribe is appointed the commissioner should administer the following oath to him, unless he desires to be sworn in the Scotch form or to affirm (as to which , see ante, pp. 609, 610), in which case the neces- sary alterations in the wording must be made : — “ You shall truly, faithfully, and without partiality to any or either of the parties in this cause, take, write down, transcribe and engross all and every the questions which shall be exhibited or put to all and every witness and witnesses, and also the depositions of all and every such witness and witnesses produced before and examined by the said commissioners named in the commission within written, as far forth as you are directed and employed by the commissioners to take, write down, transcribe or engross the said ques- tions and depositions. So help you God.” The clerk or scribe must be appointed by the commis- sioner in writing, and such appointment must specify that the commissioner appoints “A. B., of , to be my EVIDENCE. 619 clerk (. or ‘scribe’ or ‘actuary’) for the purpose of reduc- ing into writing the examination of the witnesses,” and it must also set out particulars of the commission, and be dated and signed by the commissioner. The appointment is returned with the commission. If any of the witnesses do not understand the English language, then the examination shall be taken in English through the medium of an interpreter, to be nominated by the commissioner present at the examination and to be previously sworn, according to his religion by or before the said commissioner truly to interpret the questions to be put to the witness and the answers thereto. “ You shall truly and faithfully, and without par- tiality to any or either of the parties in this cause, and to the best of your ability, interpret and translate the oath or oaths, affirmation or affirmations which shall be administered to, and all and every the questions which shall be ex- hibited or put to, all and every witness and witnesses produced before and examined by the commissioners named in the commission within written, as far forth as you are directed and employed by the said commissioners, to interpret and translate the same out of the English into the language of such witness or witnesses, and also in like manner to interpret and translate the respective depositions taken and made to such questions out of the language of such witness or witnesses into the English language. So help you God.” for affirming or swearing in the Scotch form, see ante, pp. 609, 610.] If it is desired to take the deposition of a deaf and dumb witness, an interpreter skilled in the deaf and dumb language, &c. must be employed. The above oath, with the necessary modifications, will be administered to him. Commissions. returned with the commission. Foreign witnesses not understand- ing English. Interpreter, oath of. Deaf and dumb witness; interpreter. 620 PRACTICE IN MATRIMONIAL SUITS. Commissions. Return of commission. Certificate of commissioner. Return of commission ; breaking seals of packet at Divorce Registry. Registrar’s minute of contents. No notice sent of return of commission ; parties must ascertain at Divorce Registry when returned. Commission and documents to be filed by party obtaining commission ; after filing can be inspected and office copies ordered. Commission, &c. documents sent at once to the Court. Having taken the evidence, the commissioner returns the deposition into the Divorce Registry in a sealed packet, together with any letters, documents, photographs, &c., that have been produced at the commission, and the fol- lowing certificate under his hand and seal: — I, A. B., the commissioner appointed by the commis- sion dated day of , 1911, hereby certify that the following witnesses , , , , having been first duly sworn by me, were examined before me at , on the day of , 1911, and that the following is the evidence taken upon such examination. A. B., Commissioner. On the commission being returned to the registry, the seals of the packet containing it are broken, and the packet opened by one of the principal registrars. One of the clerks in the registry then draws up a minute containing a list of the documents contained in the packet, and directing them to be filed. This minute, having been signed by the registrar who opened the packet, is annexed to the depositions and other documents contained in it. No notice is sent to anyone of the return of the commis- sion. The solicitor or party in person who obtained it must find out at the Divorce Registry whether it has been returned, and as soon as the minute is complete he must file the commission and documents. After they are filed either party can see the commission and documents, inspect them, and obtain office copies of them if so desired. The commission and documents are sent at once to the Court, whether the case is stayed or not. EVIDENCE. 621 A “ requisition,” or “letter of request,” as will be seen by the form given below, is issued when the Court, instead of issuing a commission of its own authority, “requests” the foreign tribunal within whose jurisdiction the wit- nesses it is desired to examine are residing to do so in its place . The following form is adapted from “ The Annual Practice, 1913” (London: Sweet & Maxwell, Limited, 3, Chancery Lane, and Stevens & Sons, Limited, 119, 120, Chancery Lane, W.C.), Appendix K, No. 37b, Part II., p. 1460: — Form 120. Requisition or Request for Commission. (To the President and Judges of, dc ., de., or as the case may be.) Whereas a suit is now pending in the Probate, Divorce, and Admiralty Division of the High Court of Justice in England, wherein A. B. is petitioner, and C. D. is respon- dent, and E. F. is co-respondent: And the said petitioner in his petition prays to have his marriage with the said C. D. dissolved on the ground of her adultery with the said E . F . (or as the case may be ) : And whereas it has been represented to the said Court that it is necessary for the purposes of justice, and for the due determination of the said suit, that the following persons should be examined as witnesses upon oath touching the matters in dispute in the said suit; that is to say: — G. H., of I. J., of , and K. L., of And it appearing that such witnesses are resident within the jurisdiction of your honourable Court. Now I, Sir Samuel Evans, as the President of the said Probate, Divorce, and Admiralty Division of the said High Court of Justice, have the honour to request and REQUI- SITIONS. Or ‘ ‘ Letters of Request.” Form of. Annual Practice, 191 3,. Part II. p. 1460. 622 PRACTICE IN MATRIMONIAL SUITS. Requisitions. Form of, adapted from “ Animal Practice, 1913,” Part II., p. 1460. Must be signed by- president. do hereby request that for the reasons aforesaid, and for the lassistance of the said High Court of Justice, you, as the President and judges of the said , or some one or more of you, will be pleased to summon the said witnesses (and such other witnesses as the agents of the said petitioner, respondent, and co-respondent (or as the case may he) shall humbly request you in writing so to summon) to attend at such time and place as you shall appoint before some one or more of you, or such other person as, according to the procedure of your Court, is competent to take the examination of witnesses, and that you will cause such witnesses to be examined upon the interrogatories which accompany this letter of request (or viva WCe) touching the said matters in question in the presence of the agents of the petitioner, respondent, and co-respondent (or as the case may be), or such of them as shall, on due notice given, attend such examination. And I further have the honour to request that you will be pleased to cause the answers of the said witnesses to be reduced into writing, and all books, letters, papers and documents produced upon such examination to be duly marked for identification, and that you will be further pleased to authenticate such examination by the seal of your tribunal, or in such other way as is in accordance with your procedure, and to return the same together with such request in writing, if any, for the examination of other witnesses, through His Majesty’s Secretary of State for (Foreign Affairs) for transmission to the said High Court of Justice in England. [// the request is directed to a British colony , the words “ the colonies ” should he substituted for “ foreign affairs .” If the request is directed to the High Court in India, it should he transmitted direct, and the concluding sentence of the form altered accordingly .] The letter of request is signed by the president, and when sealed is left at the registry with all necessary EVIDENCE. 623 papers, and is sent from thence direct to the Secretary of State for Foreign Affairs or the Colonies, as the case may be, without the intervention of the solicitor. The following is extracted from the Annual Practice, 1913, “Miscellaneous Practice Rules, 13a,” Part IX., p. 2186. It applies equally to the Probate, Divorce, and Admiralty Division, and to the other Divisions of the High Court. “ Before iany letter of request is sealed in the writ department, the solicitor applying for such letter of request must file a written undertaking in the words, and to the effect following: — “ [ Title of cause or matter.'] “ ‘ I (or we) hereby undertake to be responsible for all expenses incurred by H. M. Secretary of State (for Foreign Affairs, or the Colonies, as the case may be), in respect of the execution of the letter of request issued herein on the day of , 19 , and on receiving due notification of the amount of such expenses, I under- take to pay the same to the senior master ’ (or in a divorce suit ‘ registrar *) .” [Approved by the Lord Chief Justice, and the President of the P. JD. and A. D. In all other respects the practice is the same as “ Com- missions.” For fees and costs, see ante, pp. 540 — 603.] Requisitions. When sealed left at Divorce Registry and forwarded from thence direct to Secretary of State. Undertaking by solicitor to pay expenses of Secretary of State. Form of, from Annual Practice, 1913, Part IX. p. 2186. Applies equally to all Divisions of High Court. Practice in other respects same as commissions. The following rules relate to “ examinations ” as dis- tinguished from “ commissions ” By rule 129, “Application for an order for the imme- diate examination of a witness who is within the juris- diction of the Court is to he made to the judge, or to the registrars in his absence, by summons, or if on behalf of a petitioner proceeding in default of appearance of the parties cited in the cause, without summons before one of EX AMI- NATIONS. As distin- guished from commissions, application for by summons. 624 PRACTICE IN MATRIMONIAL SUITS. Exami- nations. Summons, before whom heard. Affidavit in support, contents of. Affidavit always necessary. Further evidence. Appointment of examiner ; evidence to be taken viva voce. Notice to opposite party. the registrars, who will direct the order to issue or refer the application to the judge as he may think fit.” The summons is usually before the registrar, unless the application is to examine one of the parties in the cause, or if the summons is taken out after the cause is in the list for hearing (at all events, if the trial is near at hand), in either of which cases it must be before the judge. The summons must be supported by an affidavit (gene- rally made by the solicitor) on behalf of the party apply- ing, setting out the full name and address of the person it is proposed to examine, and stating (1) that such person is a material witness, and that the applicant could not proceed safely to trial without his or her evidence; and (2) the reason or reasons why it is necessary to take the evidence immediately, as that the witness is unable to attend in open Court on account of age or infirmity or serious illness, or that he or she is about to leave the country. As in the case of a commission an affidavit is still necessary, whether the summons is consented to or not. Sometimes f urther evidence is required, as of a doctor in the case of sickness. In such a case the doctor either makes a separate affidavit or joins in the affidavit of the solicitor or other person making it, or else gives a signed certificate in writing, and his handwriting is sworn to by the other deponent. By rule 130, “ Such witness shall be examined viva voce , unless otherwise directed, before ;a, person to be agreed upon by the parties in the cause or to be nominated by the judge or by the registrars to whom the application for the order is made.” And by rule 131, “ The parties entitled to cross-examine the witness to be examined under such an order shall have four days’ clear notice of the time and place appointed for the examination, unless the judge or the registrars to whom the application is made for the order shall direct a shorter notice to be given.” EVIDENCE. 625 The following is suggested as a form of order for the Exami- “ examination ” of a witness (as distinguished from a com- natl(m s 7 mission), and is adapted from the forms as to commissions and examinations in the Annual Practice, 1913, Appen- dix K., Part II., p. 1458; though the suggestion is not of much value, as the registry uses its own form: — Form 121. Order for the “ Examination ” of a Witness or Witnesses. [ Reading as, e.g., in Form 32, ante, p. 344.] Upon hearing the solicitors on both sides, and upon reading the affidavit of A. B., sworn (or filed herein, as the case may be) on the day of , 19 , it is ordered that C. D., a witness on behalf of the said peti- tioner (or respondent, or co-respondent), be examined viva voce before J. H. M., Esq., barrister-at-law (or as the case may be), special examiner, at such time and place as the said special examiner shall think fit; and that the said special examiner shall give or cause to be given four days’ notice to the parties, or their solicitors or agents, of the time and place where the examination is to take place; Order for “ examina- tion ” (as distinguished from com- mission) of witnesses form of. [7/ the judge or registrar to whom the application is made directs a shorter notice to he given ( see rule 131), this clause must he altered accordingly . Sometimes when the matter is urgent the order runs that the witness “ be forthwith examined before, &c.,” in which case this clause is omitted altogether .] and that the said respondent shall be at liberty to cross- examine the said witness; and that the said witness shall be further examined before the said examiner if he shall think fit. And it is further ordered that it shall and may be lawful for the said examiner to make, if need be, a special report touching the said examination, and that the exami- nation so taken, and other proceedings had before him, d.m.c. 40 626 PRACTICE IN MATRIMONIAL SUITS. Exami- nations. Order for examination, form of. Order given out to solicitor. Examination how taken. Depositions returned by- examiner. Evidence, how taken in Court in matrimonial causes. Attendance of witnesses, how com- pelled. shall be filed in the Divorce Registry of this Court, at Somerset House, Strand, certified under his hand and seal, on or before the day of , 19 ; and that either party may be at liberty to take office copies of the said examination, and that the same, or an office copy or copies thereof, may be read and given in evidence at hearing (or ‘‘trial”) of this cause, saving all just excep- tions. Dated the day of , 19 (Signed by the judge or registrar, whichever made the order.) The original order is given out to the solicitor, who will make all the necessary arrangements with the examiner appointed by the order. The evidence is taken in narrative form and then read over to the witness, who should sign it. The depositions with the order of appointment are then returned to the registrar by the examiner with his certi- ficate, and a minute is then drawn up in the registry (as in the case of a “commission”) and the depositions and other documents filed. \ln fact the whole 'practice after the order is once made is the same as in the case of commissions, as to which, see ante, pp. 610 — 620. For fees and costs, see ante, pp. 568 —603.] By sect. 48 of the Matrimonial Causes Act, 1857, “ 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.” Sect. 49 provides for enforcing the attendance of wit- nesses: “The Court may, under its seal, issue writs of subpoena or subpoena duces tecum, commanding the attend- ance 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 EVIDENCE. 627 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 Ireland, as the case may be ” [ The rest of the section 'permits a person to affirm instead of swearing ; hut the whole subject of oaths and affirmations is now regulated by the Oaths Act, 1888 (51 & 52 Viet. c. 46), as to which, see ante, pp. 609, 610.] And by sect. 50, “ All persons wilfully deposing or affirming falsely in any proceeding before the Court shall be deemed to be guilty of perjury, and shall be liable to all the pains and penalties attached thereto.” By rule 109, “ Every subpoena shall be written or printed on parchment, and may include the names of any number of witnesses (but see post, p. 630). The party issuing the same, or his or her solicitor, shall take it, together with a praecipe, to the registry, and there get it signed and sealed, and there deposit the praecipe.” And by rule 180, “ The issuing of fresh subpoenas in each term shall be abolished, and it shall not be necessary to serve more than one subpoena upon any witness.” Form 122. Form of Subpoena ad Testificandum. George V., by the grace of God of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the seas, King, Defender of the Faith. To [names of all witnesses included in the subpoena to be inserted S], greeting. We command you and every of you to be and appear in your proper persons before the Bight Honourable Sir 40 (2) Exami- nations. Evidence, how taken in Court in matrimonial causes. Oaths and affirmations. Witnesses giving false evidence guilty of perjury. SUBPOENAS. To he written or printed on parchment. Fresh sub- poenas need not he issued every term. Subpoena ad testificandum, form of. 628 PRACTICE IN MATRIMONIAL SUITS. Subpoenas. Samuel Evans, Knight, the President of the Probate, Ad testifican- Divorce, and Admiralty Division of our High Court of dum, form of. J us tice at Westminster, in our county of Middlesex, on , the day of , 19 , by half -p ast ten of the clock in the forenoon of the same day, and so from day to day whenever the said Division of our said Court is sitting, until the cause or proceeding is heard, to testify the truth, according to your knowledge, in a certain cause now in our said Court before our said judge depending between A. B., petitioner, and C. B., respondent, and R. S., co-respondent, on the part of the petitioner ( or respondent or co-respondent, or as the case may be), and on the aforesaid day, between the parties aforesaid to be heard. And this you or any of you shall by no means omit, under the penalty of each of you of £100. Witness, the Bight Honourable Sir Samuel Evans, Knight, at our High Court of Justice, the day of , 19 , in the year of our reign. (Signed) X. Y., Registrar. Subpoena issued by , solicitor for the N.B. — Notice will be given to you of the day on which your attendance will be required. Form 123. Praecipe for, Praecipe for Subpoena ad Testificandum, form of. [ Heading as, e.g., in Form 32, ante, p. 344.] Subpoena for ( insert witnesses' names), to testify between A. B., petitioner, C. B., respondent, and R. S., co-respondent, on the part of the petitioner (or respondent or co-respondent) . C A. B. 1 ( P. A., petitioner’s (or re- signed) -< C. B. > or < spondent’s or co-respon- (R. S. J (. dent’s) solicitor. EVIDENCE. 629 Form 124. Subpoena Duces Tecum. George V., by the grace of God of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the seas, King, Defender of the Faith. To [ names of all witnesses included in the subpoena to be inserted], greeting. We command you and every of you to be and appear in your proper persons before the Bight Honourable Sir Samuel Evans, Knight, President of the Probate, Divorce and Admiralty Division of our High Court of Justice at Westminster in our county of Middlesex, on , the day of ,19 , by eleven of the clock in the forenoon of the same day, and so from day to day when- ever the said Division of our said Court is sitting until the cause or proceeding is heard, and also that you bring with you, and produce at the time and place aforesaid ( here describe shortly the deeds , letters, papers, &c. required to be produced ), then and there to testify and show all and singular those things which you or either of you know, or the said deed or instrument doth import, of and concerning a certain cause or proceeding now in the said Court before our said judge depending between A. B., petitioner, and C. B., respondent, and B. S., co-respondent, on the part of the petitioner ( or the respondent or co-respondent, as the case may be), and on the aforesaid day between the parties aforesaid to be heard. And this you or any of you shall by no means omit under the penalty of each of you of £100. Witness, the Bight Honourable Sir Samuel Evans, Knight, President of the Probate, Divorce, and Admiralty Division of our High Court of Justice, the day of ,19 , in the year of our reign. (Signed) X. Y., Begistrar. Subpoenas. Subpoena duces tecum , form of. 630 PRACTICE IN MATRIMONIAL SUITS. Subpoenas. Duces tecum. Prsecipe for, form of. How sealed. Must be filled up, all but names of wit- nesses, before brought into Divorce Registry for sealing. Stamp. Only one prse- cipe required for several subpoenas. Not more than three witnesses can be included in one subpoena. Forms can be purchased in registry. Subpoenas may issue on in- quiries as to alimony, main- tenance, or variation of settlements. Subpoena issued by , solicitor for the N.B. — Notice will be given to you of the day on which your attendance will be required. Form 125. Prsecipe for Subpoena Duces Tecum. [ Reading as, e.g., in Form 32, ante, p. 344.] Subpoena for to testify and produce, &c., between A. B., petitioner, O. B., respondent, and B. S., co- respondent, on the part of the petitioner (or respondent or co-respondent) . rA. B.) f P. A., petitioner’s (or re- signed) •< C. B. > or -J spondent’s or co-respon- ( R. S. j ( dent’s) solicitor. Subpoenas in matrimonial causes are sealed in the Divorce Registry. The subpoena with a praecipe is brought into the registry by the solicitor, or party in person. The subpoena must be fully filled up, all except the names of the witnesses, before it is brought into the registry. The subpoena is sealed and issued, and the praecipe left with a 5s. stamp. Only one praecipe is required, although several subpoenas may be issued, but the 5s. stamp fee must be paid on each subpoena. Not more than three witnesses can be included in each subpoena. Forms of subpoena may be purchased at the Divorce Registry (Room 43). The registrars can direct that witnesses shall be sub- poenaed on inquiries as to alimony, maintenance or varia- tion of settlements. EVIDENCE. 631 [. For the 'practice as to particulars, see ante, pp. 361 — 367.} The Probate, Divorce, and Admiralty Division has the same powers as to discovery and inspection, including the power of giving leave to administer interrogatories, as the other Divisions of the High Court. (See on this point , ante, p. 258.) An application for discovery and inspection, or for leave to administer interrogatories in a matrimonial suit, must be made by summons, and the summons may be issued though the answer has not been filed, but as a general rule the order will not be made until after the answer is filed . The order for discovery and inspection, when made, directs, that within days after service, the petitioner do file a full and sufficient affidavit, stating whether he has or has had in his possession or power, and (if any) what documents relating to the matters in question in the cause, and within days after filing such affidavit, produce to the respondent or his solicitor, such documents as are in his possession; and that the respondent or his solicitor may be at liberty to inspect and peruse the docu- ments, and take copies of them. No affidavit in support of summons is necessary, nor is any deposit money required to be lodged. The list of documents may be included in the affidavit, or may be set out in a schedule separate from the affidavit. The usual filing fee of 2 s. 6d. will be charged for each of these documents, so that it costs twice as much to file an affidavit of documents with a separate schedule, as when the list of documents is included in the affidavit. Form 126. Summons for Discovery and Inspection. [. Heading as, e.g., in Form 32, ante, p. 344.] Let attend one of the registrars at the registry of the High Court of Justice at Somerset House, Strand, DISCOVERY, INSPECTION AND INTERRO- GATORIES. General power of Court to order. Order for, how obtained. Order for, contents of. List of documents included in affidavit or set out in separate schedule. Fees for filing. Summons for, form of. 632 PRACTICE IN MATRIMONIAL SUITS. Discovery, Inspection and Interro- gatories. Summons for, form of. Affidavit as to documents, form of. in the county of Middlesex, on next, the day of , 19 , at of the clock in the noon, on the hearing of an application on the part of the above- named , that the above-named do within days after service of the order to be made hereon upon h make and file a full and sufficient affidavit stating' whether h h or ha had in h possession or power and (if any) what document relating to the matters in question in this , and accounting for the same. And that h do within days after the filing of such affidavit produce to the said , h solicitor or agent, such of the said documents as by such affidavit shall appear to be in h possession, custody, or power, except such of the same (if any) as h may by h said affidavit object to produce. And that the said , h solicitor or agent, may be at liberty to inspect and peruse the docu- ments so produced and take copies thereof and abstracts and extracts therefrom as h shall be advised at h ex- pense. And that the said may be at liberty to make such further application as to all or any of the documents mentioned in the said affidavit as h may be advised . Dated this day of , 19 To This summons was issued by W. W., of 66, Frederick’s Place, Old Jewry, E.C., solicitors for Form 127. Affidavit as to Documents. [ Heading as, e.g., in Form 32, ante, p. 344.] I, A. B., of , in the county of , the petitioner in the above cause ( or as the case may he), make oath and say:— 1 . That I have in my possession or power the documents set forth in Schedules A. and B. hereto: EVIDENCE. 633 2 , 3. That I object to produce the documents set forth in the said Schedule B. on the ground that [Here set forth fully grounds of objection, such as privilege, dc.] That I have had, but have not now in my possession or power, the documents set forth in Schedule C. hereto, but that I parted with the possession of them on or about Discovery, Inspection and Interro- gatories. Affidavit of documents, form of. [State when and how the documents were parted with, and what has become of them, to the best of your knowledge and belief .] 4. I have not now and never have had (to the best of my knowledge and belief) in my possession or con- trol, or in the possession or control of my solicitors or agents, or of any other person on my behalf, any deed, agreement, letter, memorandum, or other document, or any copy of or extract from any deed, agreement, letter, memorandum, or other document, or any book containing any copy of or extract from any deed, agreement, letter, memorandum, or other document, or any other paper writing of any sort or description whatsoever, in any way relating to the matters at issue in this cause, other than the documents set forth in the said schedules. Schedule A. [. Documents referred to in paragraph 1 .] Schedule B. [. Documents referred to in paragraph 2.] Schedule C. [Documents referred to in paragraph 3.] Sworn, &c. 634 PRACTICE IN MATRIMONIAL SUITS. Discovery, Inspection and Interro- gatories. Notice to produce. Notice to admit documents, form of. No rules and orders of Divorce Court relating to. Rules of Supreme Court must be called in aid. The practice as to giving notices to produce and admit documents is the same in matrimonial as in other actions. Form 128. Notice to Produce and Admit Documents. [Heading as, e.g., in Form 32, ante, p. 344.] Take notice that the petitioner (or as the case may he) in this cause proposes to adduce in evidence the several documents hereunder specified, and that the same may be inspected by the respondent (or as the case may he) at , on , between the hours of and , and the respondent (or as the case may he) is hereby required, within forty-eight hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed, or executed as they purport respectively to have been, that such as are specified to be copies are true copies, and that such docu- ments as are stated to have been served, sent, or delivered were so served, sent, or delivered respectively, saving all just exceptions to the admissibility of all such documents as evidence in the cause. m ( C. B. ) or to , solicitor | 10 ( A. B. j for 1 (Signed) [Here describe the documents .] ( A. B. ) or , solicitor \ C. B. ) for . ) As a matter of fact, there are no rules and orders of the Divorce Court relating to discovery and inspection or interrogatories. At all events, none have ever been pro- mulgated, whatever may be the private practice of the Divorce Registry in such matters. Therefore practitioners must look to the Rules of the Supreme Court to guide them in such matters. (See Giles v. Giles, (1900) P. 17; 69 L. J. P. 26; 81 L. T. 823.) EVIDENCE. 635 The following is summarized from the Annual Practice, 1913, pp. 473—491. Order XXXI. By rule 1, in any cause or matter ( parties ), by leave of the Court or & judge, may deliver interrogatories in writing for the examination of the opposite party ( or parties ) ; such interrogatories are to have a note at the foot stating which interrogatories each person is supposed to answer. Only one set of interrogatories to the same party to be delivered without further order. Any interroga- tories not relating to matters in the cause to be deemed irrelevant, though they may be questions which could be properly put in cross-examination. By rule 2, the proposed interrogatories are to be sub- mitted to the Court or judge (which in a matrimonial cause means the Divorce registrar, subject to appeal to the judge) for approval. Only such interrogatories are to he admitted as the registrar shall consider necessary for dis- posing fairly of the cause or matter , or for saving costs. By rule 3, costs of improper interrogatories are to be disallowed . By rule 4, interrogatories are to be “more or less in the following form: — 11 [Heading in Cause . ] “ Interrogatories on behalf of the above-named (peti- tioner, A. B., respondent, C. D., or co-respondent, E. F., or as the case may he ), for the examination of the above- named (respondent, co-respondent, or petitioner, or as the case may he ) . “1. Did not, &c. “2. Has not, &c. “ (The respondent is required to answer the interro- gatories numbered .) “ (The co-respondent is required to answer the interro- gatories numbered .)” [(See Annual Practice, 1913, Part 11., App. B., p. 1338.] Discovery, Inspection and Interro- gatories. Ord. XXXI., short sum- mary of. R. 1. Leave to administer interrogatories. If more than one person interro- gated questions each is to answ er to be marked. Only one set of interrogatories to same party ■without further order. Questions not relating to matter in issue. R. 2. Interroga- tories to be submitted to registrar for approval. What ques- tions to be allowed. R. 3. Costs of im- proper inter- rogatories disallowed. R. 4. Interroga- tories, form of. 636 PRACTICE IN MATRIMONIAL SUITS. Discovery, Inspection and Interro- gatories. R. 5. No application to matrimonial causes. R. 6. Objection to answer, when to be taken. R. 7. Improper questions to be struck out. R. 8. Answer to be within ten days. R. 9. Answer to interrogatories, form of. R. 10. Objection to answer must be by summons. R. 11. Further answer, order for. R. 12. Discovery and inspection, application for. R. 13. Affidavit of documents. R. 14. Order for production of documents, &c. Rule 5. No application to matrimonial causes. By rule 6, objections to answer interrogatories may be taken on the answer . By rule 7, improper interrogatories may be struck out or set laside. By rule 8, interrogatories are to be answered within ten days. By rule 9, the answer to interrogatories shall be in the following form : — “[Heading in Cause.'] “The answer of the above-named (petitioner, A. B., respondent, C. D., co-respondent, E. F., or as the case may he) to the interrogatories for his examination by the above-named (petitioner, respondent, or co-respondent, or as the case may he) . “ In answer to the said interrogatories I, the above- named (petitioner, A. B., respondent, C. D., co-respon- dent, E. F., or as the case may he), make oath and say as follows: — ” [See Annual Practice, 1913, Part II., App. B., p. 1338.] By rule 10, any objection to the sufficiency of the answer must be determined on summons. By rule 11, if answer insufficient, order may be made for further answer. By rule 12, any party may apply for discovery and inspection without filing an affidavit, but discovery shall not be ordered when the Court shall be of opinion that it is not necessary either for disposing fairly of the cause or for saving costs. Buie 13 gives the form of affidavit of documents, but the one already given ( ante , p. 632) will be best for a matrimonial suit. By rule 14, the Court may order the production of documents by any party in whose possession they are upon oath, &c., &c. EVIDENCE. 637 Rules 15 to 20 relate to the production, and inspection of documents. By rule 21, parties failing to answer interrogatories or to comply with an order for discovery or inspection are liable to attachment. By rule 22, service of order for interrogatories or dis- covery on the solicitor for a party is sufficient to found a motion for attachment. And by rule 23, a solicitor who, having been served with such order, refuses or neglects to give notice thereof to his client, is himself rendered liable to attachment. By rule 24, parties may use the whole or part only of the answers to interrogatories, but the judge may look at all the answers. Rules 25, 26, 27, and 27a relate to the giving security for costs to the other side by the party seeking discovery. Rule 28 relates only to actions brought against a sheriff. Discovery, Inspection and Interro- gatories. Hr. 15 to 20, ibid. It. 21. Parties failing to comply with order for inter- rogatories or discovery or in- spection liable to attachment. Rr. 22, 23. What service sufficient to found motion for attachment. Solicitor refusing or neglecting to give notice of service also liable to attachment. R. 24. Use of interro- gatories at trial. Rr. 25 to 27a. Security for costs. R. 28. No application to matrimonial cause. By rule 29, this order shall apply to infants and to their guardians dd litem. [The inherent jurisdiction of the Probate, Divorce, and Admiralty Division to try cases in camera is not confined to that branch of its jurisdiction which it inherits from the Ecclesiastical Courts. Evidence tendered in a suit for dis- solution may be heard in camera when its nature is such that justice cannot be done if it be heard in open Court: D. v. D. y D. v. Be G., (1903) P. 144; 72 L. J. P. 51; 88 L. T. 573.] R. 29. Ord. XXXI. Applicable to infants and their guardians. Hearing evidence in matrimonial cause in camera. As a matter of practice, matrimonial causes are, with two exceptions, heard in open Court; the exceptions being (1) suits for nullity on the ground of impotence;: (2) cases in which an unnatural offence is charged, and which are heard in private, or as it is usually called, m camera. 638 PRACTICE IN MATRIMONIAL SUITS. ENFORCING DECREES AND ORDERS. Mat. C. Act, 1857 (20 & 21 Viet. c. 85), s. 52. Decrees and Orders, how enforced. Writ of attachment, fi. fa . , elegit , sequestra- tion, com- mittal, and garnishee orders. Receiver. Writs, how applied for. Attachment by motion. Writs of fieri facias , sequestration and elegit by application at registry. Enforcing Decrees and Orders. By sect. 52 of the Matrimonial Causes Act, 1857 (repealed by 55 & 56 Viet. c. 19), it was enacted that “ All decrees and orders to be made by the Court in any suit, proceeding, or petition, to be instituted under autho- rity 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.” The decrees and orders of the Probate, Divorce and Admiralty Division in matrimonial causes are now en- forced by means of writs of attachment for contempt, fieri facias, sequestration and elegit, and by committal orders; also by means of garnishee orders and the appoint- ment of a receiver. By rule 117, “ When it is necessary to serve personally any order or decree of the Court, the original order or decree, or an office copy thereof, under seal of the Court, must be produced to the party served, and annexed to the affidavit of service marked as an exhibit by the commis- sioner or other person before whom the affidavit is sworn.” [ Practitioners must be careful to observe this rule, as no decree or order can be enforced that has not been 'personally served.~\ By rule 110, it was ordered that “application for writs of attachment, and also for writs of fieri facias and of sequestration, must be made .... by motion in Court.” But by rules 179 and 203, “An order for payment of costs or any other sum of money payable under an order of the Court is to be served on the solicitor for the party, and if the costs be not paid within the seven days a writ of fieri facias or writ of sequestration or writ of elegit shall ENFORCING DECREES AND ORDERS. 639 be issued as of course in the registry, upon an affidavit of service of the order, and non-payment.” Therefore such writs are no longer applied for by motion, but application for them is made at the registry upon an affidavit of service of the order, and an affidavit of non-payment made by the party to whom the money was ordered to be paid. There must be an affidavit showing that the conditions of rules 179 and 203 have been complied with. [Forms of writs can be purchased at any law stationer's, or at the Divorce Registry, Room 43.] The solicitor adds the amount of the costs of and inci- dental to the issue of the writ to the original debt for which it has issued. [For costs and fees , see ante, pp. 540 — 603.] By rule 111, “ Such writs when ordered to issue are to be prepared by the party at whose instance the order has been obtained and taken to the registry, with an office copy of the order, and when approved and signed by one of the registrars shall be sealed with the seal of the Court, and it shall not be necessary for the . . . . j udges of the Court to sign such writs.” Applications for a writ of attachment must still be made by motion supported by affidavit of service of the order, ulhich must have been personal , and of its not having been complied with. When an order for attachment is made, it generally directs that the writ remain in the registry for a fortnight, and be only then issued on an affidavit show- ing that the order has not been complied with. For a garnishee order, or for the appointment of a receiver, application is made by summons, supported by affidavit of service of the order and non-payment, and of particulars as to the debt and property in respect of' which the Order is asked for. For committal orders application must be made to the Court of Bankruptcy upon a judgment summons. Enforcing Decrees and Orders. Service of order must be proved by affidavit. Costs of and incidental to issue of writ to be added to principal debt. Writs to be prepared by party obtain- ing order. Attachment. Applications for writ of, must be by motion. Garnishee order and receiver. Committal order. 640 PRACTICE IN MATRIMONIAL SUITS. Enforcing Decrees and Orders. Writ of attachment, form of. Form 129. Writ oi Attachment. In the High Court of Justice, Probate, Divorce, and Admiralty Division. (Divorce.) Between A. B., petitioner, and C. D., respondent. Or, A. B. v. C. D. George V., by the grace of God of the United Kingdom of Great Britain and Ireland, and of the British Dominions beyond the seas, King, Defender of the Faith. To the Sheriff of greeting. We command you to attach C. D. so as to have him before us in this Division of our High Court of Justice, there to answer to us as well touching a contempt which he, it is alleged, hath committed against us, as also such other matters as shall be then and there laid to his charge, and, further to perform and abide such order as our said Court shall make in this behalf, and hereof fail not, and bring this writ with you. Witness, the Honourable Sir Samuel Evans, at our High Court of Justice, the 12th day of March, 1911. (Signed) B. A. P., Begistrar. [ The writ should he endorsed as follows : — ] This writ was issued by B. C. T., of 25, Coleman Street, London, E.C., solicitor for the petitioner, who resides fit This writ is issued by order of Court dated January 31st, 1911, whereby the said C. D. was pronounced by the ENFORCING DECREES AND ORDERS. 641 Court to be contumacious, and in contempt for non-com- pliance witli an order made in this cause on the 19 th day of November, 1910, whereby the said respondent was ordered, &c., &c. \_A praecipe in Form 133 ( 1 ) is filed with a 5s. stamp when this writ is sealed and issued.~\ Form 130. Writ of Fieri Facias. [ Title and commencement as in Form 129.] To the sheriff of , greeting: We command you that of the goods and chattels of C v . D. in your bailiwick you cause to be made the sum of £ for {as the case may be), in which the said C. D. was lately before us in our High Court of Justice in a certain cause wherein A. B. is the petitioner and C. D. the respondent therein depending, and by an order of our said Court, bearing date the day of , ordered to be paid by the said C . D . to A . B . , together with certain Costs in the said order mentioned, and which costs have been taxed and allowed by one of the registrars of the Divorce Registry of our said Court at the sum of £ , as appears by the certificate of the said registrar, dated the day of . And that of the goods and chattels of the said C . D . in your bailiwick you further cause to be made the said sum of £ [costs], together with interest thereon at the rate of £4 per centum per annum from the day of , and that you have that money and interest before us in our said Court immediately after the execution hereof to be paid to the said A. B. in pur- suance of the said order. And in what manner you shall have executed this our writ make appear to us in our said Court immediately after the execution thereof. And have there then this writ. Witness, &c. [A praecipe in Form 133 ( 2 ) is filed in the registry with a 5s. stamp, when this writ is sealed and issued.~\ D.M.C. 41 Enforcing Decrees and Orders. Writ of fieri facias , form of. 642 PRACTICE IN MATRIMONIAL SUITS. Enforcing Decrees and Orders. Writ of sequestration, form of. Form 131. Writ of Sequestration. [Title and commencement as in Form 129, p. 640.] To ( names of not less than four commissioner ,$) greeting : Whereas lately in the Probate, Divorce, and Admiralty Division of our High Court of Justice in a certain cause there depending, wherein A. B. is petitioner and C. D. is respondent, by an order of our said Court made in the said cause, and bearing date the day of , 19 , it was ordered that the said C. D. should pay into Court to the credit of the said cause the sum of £ : Know ye, therefore, that we, in confidence of your prudence and fidelity, have given, and by these presents do give to you, or any three or two of you, full power and authority to enter upon all the messuages, lands, tenements, and real estate whatsoever of the said C. D., and to collect, receive, and sequester into your hands not only all the rents and profits of his said messuages, lands, tenements, and real estate, but also all his goods, chattels, and personal estates whatsoever; and therefore we command you, any three or two of you, that you do at certain proper and convenient days and hours, go to and enter upon all the messuages, lands, tenements, and real estates of the said C. D., and that you do collect, take, and get into your hands not only the rents and profits of his said real estate, but also all his goods, chattels, and personal estate, and detain and keep the same under sequestration in your hands until the said 0. D. shall [pay into Court to the credit of the said cause the sum of £ ] clear his contempt, and our said Court make other order to the contrary. Witness, &c. [A praecipe in Form 133 (3) is filed in the registry , with a 5s. stamp , when this writ is sealed and issued . ] ENFORCING DECREES AND ORDERS. 643 Form 132. Enforcing Decrees and Writ of Elegit. Orders. [Title and commencement as in Form 129, p. 640.] To the sheriff of greeting: W hereas lately in the Probate, Divorce, and Admiralty Writ of elegit, Division of our High Court of J ustice in a, certain cause there depending, wherein A. B. is petitioner and C. D. respondent, by an order of our said Court made in the said cause and bearing date the day of , it was ordered that A. B. should pay unto C. D. the sum of £ , together also with certain costs as in the said order mentioned, and which costs have been taxed and allowed by , one of the registrars of our said Court, at the sum of £ as appears by the certificate of the said registrar, dated the day of . And after- wards the said C . D . came into our said Court, and accord- ing to the statute in such case made and provided, chose to be delivered to her all such lands, tenements, rectories, tithes, rents, and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick as the said A. B., or any one in trust for him, was seised or possessed of on the day of in the year of our Lord ( insert date of order), or at any time afterwards, or over which the said A. B., on the said day of or at any time afterwards, had any disposing power which he might without the assent of any other person exercise for his own benefit, to hold to him the said lands, tenements, rectories, tithes, rents, and heredita- ments respectively, according to the nature and tenure thereof, to him and to his assigns, until the said two several sums of £ and £ together with interest upon the said sums at the rate of £4 per centum per annum from the said day of shall have been levied. There- fore we command you that without delay you cause to be delivered to the said C. D. by a reasonable price ;and extent all such lands and tenements, rectories, tithes, rents 41 (2) 644 PRACTICE IN MATRIMONIAL SUITS. Enforcing Decrees and Orders. Writ of elegit form of. Praecipes, forms of. Attachment. Fieri facias. and hereditaments, including lands and hereditaments of copyhold or customary tenure, in your bailiwick as the said A. B., or any person or persons in trust for him, was or were seised or possessed of on the said day of , or at any time afterwards, or over which the said A. B. on the said day of , or at any time afterwards, had any disposing power which he might without the assent of any other person exercise for his own benefit, to hold the said lands, tenements, rectories, tithes, rents, and hereditaments respectively, according to the nature and tenure thereof, to him and to his assigns until the said two several sums, and interest as aforesaid, shall have been levied . And in what manner you shall have executed this our writ make appear to us in our Court aforesaid, imme- diately after the execution thereof, under your seals, and the seals of those by whose oath you shall make the said extent and appraisement. And have there then this writ. Witness, &c. [ A praecipe in Form 133 (4) is filed in the registry with a 5s. stamp, when this writ is sealed and issued.~\ Form 133. Forms of Praecipes for Writs of Attachment, Fieri Facias, Sequestration and Elegit. (1) Attachment. [ Title as in Farm 129.] Seal in pursuance of order dated day of , an attachment directed to the sheriff of , against C . D . f|or not delivering to A . B . (2) Fieri Facias. [Title as in Form 129.] Seal a writ of fieri facias directed to the sheriff of , against C. D., of , in the county of , upon a judgment (■ or order) dated the day of for the sum of £ debt and £ costs and interest, &c. ENFORCING DECREES AND ORDERS. 645 Indorsed to levy £ and interest thereon at £4 per centum per annum from the {date) and costs of execution. X. Y., solicitor for {party an whose behalf writ is to issue). (3) Sequestration. [ Title as in Form 129.] Seal a writ of sequestration against 0. D. for not at the suit of A. B. directed to order dated 1 the day of , 19 . (4) Elegit. [Title as in Form 129.] Seal a writ of -elegit directed to the sheriff of , against of , in the county of , for not paying to A . B . the sum of £ , together with interest thereon, from the day of (and the sum of £ for costs), with interest thereon at the rate of £4 per centum per annum. Judgment {or order) dated day of , 19 . (Taxing officer’s certificate, dated day of 19 .) X. Y., solicitor for [All the above Forms have been adapted from the Annual Practice, 1913.] As has been seen, by sect. 52 of the Matrimonial Causes Act, 1857 (repealed by 55 & 56 Viet. c. 19), decrees and orders were to be enforced in the same manner as the decrees and orders of the Court of Chancery were enf orced in 1857. In “ Daniell’s Chancery Practice,” 4th ed., p. 938, it is stated that in 1857 an order of the Court of Chancery had to be endorsed in the following manner: — “If you, the within-named A. B., neglect to obey this decree (or order) by the time therein limited, you will be liable to be Enforcing Decrees and Orders. Sequestra- tion. Elegit. Practice of Court of Chancery- in 1857. 646 PRACTICE IN MATRIMONIAL SUITS. Enforcing Decrees and Orders. Ibid. Chancery Division at present day. Personal ser- vice of order necessary before motion for attachment. The Court no longer orders attachment to issue for non-payment of a sum of money. Failure to give security, attachment for. arrested, under a writ of attachment issued out of the High Court of Chancery, or by the serjeant-at-arms attending the same Court; and also be liable to have your estate sequestered, for the purpose of compelling you to obey the same decree (or order).” Since the passing of the Judica- ture Acts, the form of orders made in the Chancery Divi- sion is regulated by Ord. XLI., rule 5, which is in the following terms: — “ Every judgment or order made in any cause or matter requiring any person to do an act thereby ordered shall state the time, or the time after service of the judgment or order within which the act is to be done, and upon the copy of the judgment or order which shall be served upon the person required to obey the same there shall be endorsed a memorandum in the words or to the effect, following: ‘If you, the within-named A. B., neglect to obey this judgment (or order) by the time therein limited, you will be liable to process of execution for the purpose of compelling you to obey the same judg- ment (or order).’ ” [Before applying for attachment, it must be shown that the order was endorsed as above: Pace v. Pace (1891), 61 L. J. P. 114; 67 L. T. 383.] By rule 179 of the Divorce Court rules personal service is required of every order which it is desired to enforce by attachment. [The powers of the Court to attach for non-payment of a sum of money by the Bankruptcy Acts, 1869 and 1883, the remedies now are by writ of fi. fa., sequestration or elegit, or by a garnishee order and appointment of a receiver, or by applying to the Bankruptcy Court for a committal order: see Lynch v. Lynch (1885), 10 P. D. 183; 54 L. J. P. 93; Be Lossy v. Be Lossy (1890), 15 P. D. 115; 62 L. T. 704. Bui the Court will attach a husband for disobedience to so much of the order as orders him to give security for his wife’s costs; that is, if she can show he is able to do so and the rest of the circumstances warrant it: see Lynch v. Lynch, supra ; Bates v. Bates (1889), 14 P. D. 17; 58 L. J. P. 85; 60 L. T. 125; Shine v. Shine, (1893) P. 289; 63 L. J. P. ENFORCING DECREES AND ORDERS. 647 60; 69 L. T. 500; but see Sullivan v. Sullivan, Leahay , Madden and Slaney (1875), 33 L. T. 706; Clarke v. Clarke , (1891) P. 278; 60 L. J. P. 97. Issuing advertisements by party to suit to obtain evidence against the other party may be punished by attachment: Butler v. Butler (1888), 13 P. D. 73; 57 L. J. P. 42; 58 L. T. 563; and see Brodribb v. Brodribb and Wall (1886), 11 P. D. 66; 55 L. J. P. 47; 56 L. T. 672. Since the passing of the Matrimonial Causes Act, 1884, the Court no longer attaches for disobedience to order to return to cohabitation: Weldon v. Weldon (1885), 54 L. J. P. 60; 52 L. T. 233. For cases where attachment refused against a party for molesting the other party, see Smith v. Smith (1889), 59 L. J. P. 15; Northledge v. Northledge (1894), 70 L. T. 815. Where a wife disobeyed an order that a child should be given up to the husband “ forthwith ,” and removed the child out of the jurisdiction, the Court made an order for her attachment and committal: Gordon v. Gordon and Gran- ville Gordon, (1903) P. 141; 72 L. J. P. 33; 89 L. T. 73.] Motions for attachment must always be made before a judge. In vacation they are made before the vacation judge, though be is not one of the judges of the Division. As stated ante , p. 639, the usual practice is to order that the writ lie in the registry for one fortnight, to give the party a further opportunity of complying with the order. The writ is not issued until an affidavit of search has been filed, showing that the order has not been complied with. And by rule 112, “ Any person in custody under a writ of attachment may apply for his or her discharge to the judge, if the Court be then sitting; if not, then to one of the registrars, who for good cause shown shall have power to order such discharge.” [Husband in custody under attachment is entitled to re- lease on compliance with the order. Although the Court will order him to pay all his wife’s costs incurred in connec- tion with the attachment, it will not make the payment of such costs a condition precedent of his release: Ayres v. Ayres (1902), 71 L. J. P. 18; 25 L. T. 648.] Enforcing Decrees and Orders. Advertise- ments for evidence by party to suit. Restitution of conjug-al rights. Molestation. Attachment ex parte ; wife disobey- ing order not to take child out of juris- diction. Motion for must always be before judge; in vacation before vaca- tion judge. Further time given for compliance before issue of writ. Affidavit of search, show- ing order not complied with, must be filed before issue of writ. Person in custody under, dis- charge of. Payment of wife’s costs not condition precedent to discharge. 648 PRACTICE IN MATRIMONIAL SUITS. Enforcing Decrees and Orders. Before grant- ing 1 discharge Court must be satisfied that order com- plied with. Sequestration. Pension of officer ; pay of officer. Civil Service pension. Rent-charge. Ibid, order for, without service of original order. Writ of elegit against hus- band by wife who had obtained man- damus against her ordering her to give up certain deeds. Sequestration against trustees. The Court must be satisfied by affidavit that the order has been complied with, and when the order of discharge has been obtained the prisoner will not be released until the sheriff’s certificate has been obtained that there are no other detainers against him. [Pension of officer in Indian Army ( Birch v. Birch (1883), 8 P. D. 163; 52 L. J. P. 88); and pay of Navy surgeon on active service ( Apthorpe v. Apthorpe (1887), 12 P. D. 192; 57 L. T. 518), not liable to sequestration. Court ordered sequestrators to receive portions of Civil Service pension: Sansom v. Sansom (1879), 4 P. D. 69; 48 L. J. P. 25; 39 L. T. 642. Sequestration ordered in general terms where only property a rent-charge, of which trustees had discretion to refuse payment: Clinton v. Clinton (1866), L. R., 1 P. & D. 215; 14 L. T. 257. Sequestration ordered without service of original order against property of wife refusing to obey order to give up children: Hyde v. Hyde (1888), 13 P. D. 1 66; 57 L. J. P. 89; 59 L. T. 529. Wife obtained writ of elegit against her husband, who had failed to comply with order to pay her costs. He obtained a man- damus ordering her to deliver up certain deeds. The Court refused to set aside the writ of elegit, notwithstanding the mandamus: Kippax v. Kippax (1891), 67 L. T. 382. The Court has no power to enforce a writ of sequestration against property in the hands of trustees, unless they appear and submit to the jurisdiction: Craig v. Craig and Hamp, (1896) P. 171; 65 L. J. P. 99; 75 L. T. 280.] B^kruptcy The Bankruptcy Act, 1883 (46 & 47 Viet. c. 52), s. 103, (46 & 47 Viet, with respect to the jurisdiction formerly exercised by the c. 52), s. 103. p r io bate Division in common with the other Divisions of the High Court, enacts as follows: — Power to “(1.) It shall be lawful for the Lord Chancellor by Chancellor order to direct that the jurisdiction and powers under to transfer section five of the Debtors Act, 1869, now vested in the jurisdiction under Debtors High Court, shall be assigned to and exercised by the bankruptcy 0 judge to whom bankruptcy business is assigned, judge and “ (2.) It shall be lawful also for the Lord Chancellor registrars. manner to direct that the whole or any part of the Power to J r vary orders said jurisdiction and powers shall be delegated to and so made. exercised by the bankruptcy registrars of the High Court. ENFORCING DECREES AND ORDERS. 649 “ (3.) Any order made under this section may, at any time, in like manner, be rescinded or varied. “ (4.) Every county court within the jurisdiction of which a judgment debtor is or resides shall have jurisdic- tion under section five of the Debtors Act, 1869, although the amount of the judgment debt may exceed fifty pounds (now £100). “(5.) Where, under section five of the Debtors Act, 1869, application is made by a judgment creditor to a court having bankruptcy jurisdiction, for the committal of a judgment debtor, the court may, if it thinks fit, decline to commit, and in lieu thereof, with the consent of the judgment creditor, and on payment by him of the pre- scribed fee, make a receiving order against the debtor. In such case the judgment debtor shall be deemed to have committed an act of bankruptcy at the time the order is made . “ (6.) General rules under this Act may be made for the purpose of carrying into effect the provisions of the Debtors Act, 1869.” And by rule 265 of the General Rules made under the said Act, it is further provided: — “ Unless and until the Lord Chancellor otherwise orders, the jurisdiction and powers of the High Court under sect. 5 of the Debtors Act, 1869, shall be exercised by the bankruptcy registrars of the High Court.” Applications for orders for committal for non-payment of a sum of money for alimony or costs (or as the case may he ), payable under an order of the Court made in a matri- monial cause, must be by summons to the proper Bank- ruptcy Court. The practice is entirely regulated by the practice of the Bankruptcy Court. The order for committal will not be made without proof of means, or without proof that the original order has been personally served on the person it proposed to commit. Enforcing Decrees and Orders. Jurisdiction of County Court. Committal orders, how applied for. In Bank- ruptcy Court only ; hut must he proof of means, and original order mustbe served personally. PRACTICE IN MATRIMONIAL SUITS. 650 Enforcing Decrees and Orders. Receiver. Application for, Ord. L. r. 15a, R. S. C. Judge to con- sider amount of debt, &c. May direct inquiries. Application for, by sum- mons before judge. Ord. L. r. 16, R. S. C. to give security to satisfaction of Court. Power to order salary for. Receiver’s, bond, form of. By Ord. L. r. 15a, R. S. C., in every case in which an application is made for the appointment of a receiver, the judge, in determining whether it is just or convenient that such appointment should be made, shall have regard to the amount of the debt claimed by the applicant, to the amount which may probably be obtained by the receiver and to the probable costs of his appointment, and may, if he shall think fit, direct any inquiries on these or other matters before making the appointment. [The application for a receiver is made in matrimonial causes before a judge in chamber s.~] By rule 16, where an order is made directing a receiver to be appointed, unless otherwise ordered, the person to be appointed shall first give security, to be allowed by the judge (in matrimonial causes the registrar decides the amount of security, subject to appeal to the judge), and taken before a person authorized to administer oaths, duly to account for what he shall receive as such receiver, and to pay the same as the judge shall direct; and the person so to be appointed shall, unless otherwise ordered, be allowed a proper salary or allowance. The following (suggested) form of bond is adapted from Appendix L, No. 21 ( Annual Practice, 1913, Part II., p. 1500): — Form 134. Receiver’s Bond. Know all men by thesa presents that I, A. B., and we, C. D. and E. F., are jointly and severally held and firmly bound unto G. H., of , in the county of , in the sum of £ of lawful money of the United King- dom of Great Britain and Ireland, to be paid unto the said G. H. or his executors or administrators, for which payment, well and truly to be made, I, the said A. B., for myself, my heirs, executors and administrators, and every of them, and we, the said C. D. and E. F., for ourselves,. ENFORCING DECREES AND ORDERS. 651 our heirs, executors and administrators, do bind and oblige Enforcing- ourselves for the whole firmly by these presents. D ^Orders. nd Sealed with our seals on the 7th day of August, 1911. Receiyer V g Whereas by an order of the Probate, Divorce, and bond, form of. Admiralty Division of the High Court of Justice, made on the 7th day of July, 1911, in a suit in which I. J. is petitioner and K. J. is respondent, it was ordered that upon the above bounden A. B. first giving security to the satisfaction of one of the registrars of the Divorce Registry of the said Division, he should be appointed receiver of the rents and profits of the real estate, and to collect and get in the outstanding personal estate of the said I. J. in the said order named; and that such receiver should, at such time or times as might be ordered by one of the said registrars, file and pass his accounts, and should from time to time, as might be thereafter ordered by one of the said registrars, pay the balance or balances appearing due on the accounts, or such part thereof as should be certified as proper to be so paid in or towards satisfaction of what should, for the time being, be due in respect of the order made on the 6th day of June, 1911, for the sum of £ and £ for costs, making together the sum of £ And it was further ordered that the costs of the said order and of carrying out the same, and of obtaining the discharge of the receiver (such costs to be ascertained by one of the said registrars), should be primarily payable out of the sums received by the said receiver; and it was further ordered that the said receiver should duly pay the balance (if any) into Court to the credit of the said suit, or dispose of the same in such other manner as the Court should hereafter direct. And whereas one of the said registrars of the said Divorce Registry has approved of the said C. D. and E. F. as sureties for the said A. B., and has also approved of the above bond as a proper security to be entered into by the said A. B. 652 PRACTICE IN MATRIMONIAL SUITS. Enforcing Decrees and Orders. Receiver’s bond, form of. Bond to be drafted by solicitor obtaining order. Now the condition of the above-written bond or obliga- tion is that if the above bounden A. B., his executors and administrators, or some or one of them, do and shall duly account for all and every the sum and sums of money which the said A. B. shall so receive on account of the rents and profits of the real estate, and in respect of the personal estate of the said I. J., and dispose of the same in such manner as is hereinbefore set forth, then the above- written bond or obligation shall be void and of no effect; otherwise the same shall be and remain in full force and virtue. Provided always, and it is hereby agreed between the said A. B. and the said C. D. and E. F., that the said A. B., on being discharged from his office of, or ceasing to act as, such receiver as aforesaid, shall forthwith give notice thereof in writing to the said C. D. and E. F., and furnish to them free of charge an office copy of the order of the Court discharging him from the office. And further, that the said A. B., his heirs, executors and administrators, shall and will from time to time and at all times save, defend, and hold harmless the said C. D. and E. F., their heirs, executors and administrators, from and against all loss and damage, costs and expenses, which he or they shall or may at any time sustain or be put unto by reason or in consequence of the said A. B. having entered into the above-written bond or obligation. (Signed) A. B. CD. E. F. [. Although the above form is a suggestion , as a matter of 'practice solicitors will find it best to draft their bond by filling up the blanks in the printed forms of bond which can be purchased at the Royal Courts of Justice.'] The solicitor obtaining the order will draft the bond, and submit it for approval to the opposite party. If approved it can be executed . ENFORCING DECREES AND ORDERS. 653 It is then taken to the registrar, who, if he approves it. will sign his name to it in the margin. [7/ the bond or sureties be disapproved of, the same practice must be followed as in the case of a bond for secur- ing the wife's costs, as to which, see ante, pp. 553 — 558.] Ord. L. rr. 18 to 21 inclusive, regulates the investiga- tion of the receiver’s accounts. In matrimonial causes such accounts are investigated in the Divorce Registry, but the practice is, as far as possible, the same. Application is made by summons for the discharge of a receiver. \_For fees and costs, see ante, pp. 540 — 603.] Where a co-respondent who had undertaken to pay costs in instalments died intestate, the Court, having restrained his widow by injunction from dealing with the estate, appointed the petitioner receiver, but ordered the order not to be drawn up for a week, to give the widow an opportunity of deciding whether she would take out administration and give security for the debt: Waddell v. Waddell and Craig, (1892) P. 226; 61 L. J. P. 110; 67 L. T. 389. It appears to have been first held that the Divorce Court had power to attach a debt in the hands of a third person, under the Judicature Act, 1873, s. 25, sub-s. 8, in 1882. [See Whittaker v. Whittaker (1881), 7 P. D. 15; 51 L. J. P. 80; 47 L. T. 131.] Applications for garnishee orders have, however, since become common, and, as there are no rules or orders of the Divorce Court regulating such applications, the prac- tice is under Ord. XLV. r. 9 of Ord. XLVIIIa. R. S. C. [See Annual Practice, 1913, pp. 750 — 769 and pp. 787 — 807.] The garnishee order made in the Divorce Division is an order nisi , and the application is made ex parte, and must be founded on affidavit. Enforcing Decrees and Orders. Signed by registrar. Bond dis- approved by opposite party. Receiver’s accounts. Ibid, dis- charge of. Co-respondent condemned in costs dying intestate, petitioner appointed receiver. Garnishee order. Power of Court to order. No rules or orders of Divorce Court relating to Ord. XLV. R. S. C., Ord. XLVIIIa. R. S. C. Garnishee order nisi. 654 PRACTICE IN MATRIMONIAL SUITS. Enforcing Decrees and Orders. Affidavit in support of application for, contents of. Forms of affidavit and order nisi can be purchased, Divorce Registry, Room 43. Garnishee affidavit and order nisi to he taken to registry. If order nisi granted, time fixed therein for showing cause. Order nisi entered on minutes ; affidavit filed. Service of, on garnishee. Showing cause against. Ord. XLV. r. 4, R. S. C. Garnishee disputing liability. Such affidavit should state (1) the date of the order it is desired to enforce, and whether made for alimony or costs, or as the case may be, and the amount; (2) that the order still remains unsatisfied either wholly or partially, and to what amount; (3) that some person, whose name and full description must be given, is indebted to the judgment debtor, and the amount of such indebtedness or there- abouts; and (4) that the garnishee is within the jurisdic- tion of the Court. [For form, see Appendix B., R. S. C., No. 25, Annual Practice , 1913, Part 11., p. 1351.] The forms of affidavits and order nisi can be purchased in the registry (Room 43), and when completed the affi- davits and two copies of the order nisi must be taken to the registrar. If the registrar is satisfied with them and also that the judgment debtor has been duly applied to fbr the debt, he will grant the order nisi attaching 1 the debt and further order that the garnishee attend on a certain day. The order nisi is then taken to the registry, entered on the minutes and delivered to the solicitor. The usual fee of 2s. 6d5. is paid for filing the affidavit, and 5s. for the order nisi, and a deposit of 5s. is made for the order absolute. The garnishee must be served with a plain copy of the order, but the judgment debtor need not be served at all. The garnishee can attend and show cause on the day appointed. If he fails to show sufficient cause the order is made absolute. By Ord. XLV. rule 4, “If the garnishee disputes his liability, the Court or J udge instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in an action may be tried or determined, or may ENFORCING DECREES AND ORDERS. 655 refer the matter to a Master,” which in the case of a matri- monial cause would mean one of the registrars. \_It must be assumed, therefore, that when the garnishee disputes his liability the matter is, or should be, referred in the first instance to the judge.~\ If the garnishee fails to attend on the day and hour fixed in the decree nisi , the order will not be made absolute without an affidavit of service of the decree nisi upon him. When the order is made absolute a further fee of 5s. is payable, the amount of which was deposited at the time of making the order nisi. [ For costs, see ante, pp. 568 — 603.] The practice as to charging orders in the High Court is regulated by Ord. XLVL, R. S. C. ( Annual Practice , 1913, pp. 769—783). A charging order is an order charging stocks or shares. In matrimonial causes a charging order nisi is applied for by summons in the same way as a garnishee order. By Ord. XLVI. r. 4, the affidavit in support of the summons should be in the form given in Appendix B., R. S. C., Form 27 ( Annual Practice , 1913, Part II., p. 1351). As in the case of a garnishee order, the registrar in the charging order nisi fixes the day and hour on which cause shall be shown against it. But in the case of charging order cause is shown before a judge by whom only it can be made absolute. The order nisi is served on the bank or company in whose books the stock stands which it is desired to charge, and also on the judgment debtor. The practice as to affidavit of service, when the parties served with the order nisi do not appear at the time appointed, is the same as in the case of a garnishee order {ante, pp. 653, 654). Enforcing Decrees and Orders. Garnishee failing to appear to show cause ; affidavit of service ; order absolute. Charging order, prac- tice as to. Meaning of term. Application by summons. Affidavit in support, form of. Appointment to show cause against. Showing cause against must be before judge. Service of order. Party not appearing to show cause, affidavit of service. 656 PRACTICE IN MATRIMONIAL SUITS. Enforcing Decrees and Orders. Discharging order, how made, service of. Bankers’ Evidence Act, 1879, s. 7. Order to inspect hankers’ hooks. Ibid, order made on summons. Service of summons. Ibid, order. Enforcing order for costs, after nearly ten years. No power to enforce bond for wife’s costs against husband in suits for judicial separation. Application for a discharging order must be made on summons. When granted, a sealed copy of such dis- charging order must be served on the bank or company in which the stock stands. [For fees and costs, see ante, pp. 540 — 603. ] By sect. 7 of the Bankers’ Evidence Act, 1879 (42 & 43 Viet. c. 11), “ On the application of any party to a legal proceeding, a court or judge may order that such party be at liberty to inspect and take copies of any entries in a banker’s book for any of the purposes of 1 such proceedings. An order under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank three clear days before the s^me is to be obeyed, unless the court or a judge other- wise directs.” This order is made on a summons before the judge to show cause why the party should not be allowed to inspect and take copies, &c., following the wording of the section. It may be, of course, very useful to a party desiring to apply for a charging order. The summons is served on the opposite party or his or her solicitor, and not on the hank. The order, when made, is served on the bank. [Where a decree was pronounced, with costs against the co-respondent, but no steps were taken to enforce the order for nearly ten years, the Divorce Court rules being silent as to what is to be done in such a case: held, that the proper course was to apply to the Court under Ord. XLII. r. 23, for an order for the co-respondent to pay the taxed costs, and for leave to issue execution: Goodwin v. Goodwin and Arnold , (1897) P. 87; 66 L. J. P. 107. Where a petition for judicial separation by a wife had been dismissed with costs, the Court of Appeal held that her solicitor could not enforce against the husband the bond executed by him (see ante, p. 553) as security for his wife’s costs: Russell v. Russell, (1892) P. 152; 61 L. J. P. 45; 66 L. T. 436.] APPENDIX A. RULES AND REGULATIONS Made under the Provisions of 20 & 21 Vict. Cap. 85; 23 & 24 Vict. Cap. 144; 32 & 33 Vict. Cap. 62; 38 & 39 Vict. Cap. 77. Rules and Regulations, 26th December, 1865. All rules and regulations heretofore made and issued for her Majesty’s Court for Divorce and Matrimonial Causes shall be revoked on and after the 11th day of January, 1866, except so far as concerns any matters or things done in accordance with them prior to the said day. The following rules and regulations shall take effect in her Majesty’s Court for Divorce and Matrimonial Causes on and after the 11th day of January, 1866. Petition. 1. Proceedings before the Court for Divorce and Matrimonial Causes shall be commenced by filing a petition. 2. Every petition shall be accompanied by an affidavit made by the petitioner, verifying the facts of which he or she has personal cognizance, and deposing as to belief in the truth of the other facts alleged in the petition, and such affidavits shall be filed with the petition. See also Rule 175. 3. In cases where the petitioner is seeking a decree of nullity of marriage, or of judicial separation, or of dissolution of marriage, or a decree in a suit of jactitation of marriage, the petitioner’s affidavit, filed with his or her petition, shall further state that no collusion or connivance exists between the petitioner and the other party to the marriage or alleged marriage. 42 D.M.C. 658 APPENDIX A. Co-respondents. 4. Upon a husband filing a petition for dissolution of marriage oil the ground of adultery, the alleged adulterers shall be made co-respondents in the cause, unless the Judge Ordinary (a) shall otherwise direct. 5. Application for such direction is to be made to the Judge Ordinary on motion founded on affidavit. 6. If the names of the alleged adulterers or either of them should be unknown to the petitioner at the time of filing his petition, the same must be supplied as soon as known, and appli- cation must be made forthwith to one of the registrars to amend the petition by inserting such name therein, and the registrar to whom the application is made shall give his directions as to such amendment, and such further directions as he may think fit as to service of the amended petition. 7. The term “ respondent ” where the same is herein-after used shall include all co-respondents so far as the same is applicable to them. Citation. 8. Every petitioner who files a petition and affidavit shall forthwith extract a citation, under seal of the Court, for service on each respondent in the cause. 9. Every citation shall be written or printed on parchment, and the party extracting the same, or his or her proctor, solicitor, or attorney, shall take it, together with a praecipe, to the registry, and there deposit the praecipe and get the citation signed and sealed. — A Eorm of Praecipe is given in the Appendix, No. 3 (see p. 305). The address given in the praecipe must be within three miles of the General Post Office. Service. 10. Citations are to be served personally when that can be done. 11. Service of a citation shall be effected by personally de- livering a true copy of the citation to the party cited, and pro- ducing the original, if required. 12. To every person served with a citation shall be delivered, together with the copy of the citation, a certified copy of the petition, under seal of the Court. (a) The term “ Judge Ordinary ” is preserved in the rules, but it should now be read “ one of the judges of the Probate, Divorce, and Admiralty Division.” RULES AND REGULATIONS. 659 13. In cases where personal service cannot be effected, appli- cation may be made by motion to the Judge Ordinary, or to the registrars in his absence, to substitute some other mode of service. 14. After service has been effected, the citation, with a certi- ficate of service endorsed thereon, shall be forthwith returned into and filed in the registry. 15. When it is ordered that a citation shall be advertised, the newspapers containing the advertisements are to be filed in the registry with the citation. 16. The above rules, so far as they relate to the service of citations, are to apply to the service of all other instruments requiring personal service. 17. Before a petitioner can proceed, after having extracted a citation, an appearance must have been entered by or on behalf of the respondents, or it must be shown by affidavit, filed in the registry, that they have been duly cited, and have not appeared. 18. An affidavit of service of a citation must be substantially in the form given in Appendix A (see p. 307), and the citation referred to in the affidavit must be annexed to such affidavit, and marked by the person before whom the same is sworn. Appearance. 19. All appearances to citations are to be entered in the registry in a book provided for that purpose. 20. An appearance may be entered at any time before a pro- ceeding has been taken in default, or afterwards, as hereinafter directed, or by leave of the Judge Ordinary, or of the registrars in his absence, to be applied for by motion founded on affidavit. See also Rule 185. 21. Every entry of an appearance shall be accompanied by an address, within three miles of the General Post Office. 22. If a party cited wishes to raise any question as to the jurisdiction of the Court, he or she must enter an appearance under protest, and within eight days file in the registry his or her act on petition in extension of such protest, and on the same day deliver a copy thereof to the petitioner. After the entry of an absolute appearance to the citation a party cited cannot raise any objection as to jurisdiction. See Rules from 56 to 61 as to proceedings on act on petition. 42 (2) 660 APPENDIX A. Interveners. 23. Application for leave to intervene in any cause must be made to the Judge Ordinary by motion, supported by affidavit. 24. Every party intervening must join in the proceedings at the stage in which he finds them, unless it is otherwise ordered by the Judge Ordinary. Suits in forma, Pauperis. 25. Any person desirous of prosecuting a suit in forma pauperis is to lay a case before counsel, and obtain an opinion that he or she has reasonable grounds for proceeding. 26. No person shall be admitted to prosecute a suit in forma pauperis without the order of the Judge Ordinary; and to obtain such order the case laid before counsel and his opinion thereon, with an affidavit of the party or of his or her proctor, solicitor, or attorney, that the said case contains a full and true statement of all the material facts, to the best of his or her knowledge and belief, and an affidavit of the party applying as to his or her income or means of living, and that he or she is not worth £25, after payment of his or her just debts, save and except his or her wearing apparel, shall be produced at the time such application is made. See also Eules 208 to 211. 27. Where a husband admitted to sue as a pauper neglects to proceed in a cause, he may be called upon by summons to show cause why he should not pay costs, though he has not been dis- paupered, and why all further proceedings should not be stayed until such costs be paid. Answer. 28. Each respondent who has entered an appearance may within twenty-one days after service of citation on him or her file in the registry an answer to the petition. See also Eule 186. 29. Each respondent shall on the day he or she files an answer, deliver a copy thereof to the petitioner, or to his or her proctor, solicitor, or attorney. 30. Every answer which contains matter other than a simple denial of the facts stated in the petition, shall be accompanied by an affidavit made by the respondent, verifying such other or additional matter, so far as he or she has personal cognizance RULES AND REGULATIONS. 661 thereof and deposing as to his or her belief in the truth of the rest of such other or additional matter, and such affidavit shall be filed with the answer. 31. In cases involving a decree of nullity of marriage or of judicial separation, or of dissolution of marriage, or a decree in a suit of jactitation of marriage, the respondent who is husband or wife of the petitioner shall, in the affidavit filed with the answer, further state that there is not any collusion or connivance between the deponent and the petitioner. Further Pleadings. 32. Within fourteen days from the filing and delivery of the answer the petitioner may file a reply thereto, and the same period shall be allowed for filing any further pleading by way of rejoinder, or any subsequent pleading. 33. A copy of every reply and subsequent pleading shall on the day the same is filed be delivered to the opposite parties, or to their proctor, solicitor, or attorney. General Rules as to Pleadings. 34. Either party desiring to alter or amend any pleading must apply by motion to the Court for permission to do so, unless the alteration or amendment be merely verbal, or in the nature of a clerical error, in which case it may be made by order of the J udge Ordinary, or one of the registrars in his absence, obtained on summons. See also Rules 181 to 184 and Rule 187. 35. When a petition, answer, or other pleading has been ordered to be altered or amended, the time for filing and deliver- ing a copy of the next pleading shall be reckoned from the time of the order having been complied with. 36. A copy of every pleading showing the alterations and amendments made therein shall be delivered to the opposite parties on the day such alterations and amendments are made in the pleadings filed in the registry; and the opposite parties, if they have already pleaded in answer thereto, shall be at liberty to amend such answer within four days, or such further time as may be allowed for the purpose. 37. If either party in the cause fail to file or deliver a copy of the answer, reply, or other pleading, or to alter or amend the same, or to deliver a copy of any altered or amended pleading, within the time allowed for the purpose, the party to whom the copy of such answer, reply, or other pleading, or altered or 662 APPENDIX A. amended pleading, ought to have been delivered, shall not be bound to receive it, and such answer, reply, or other pleading shall not be filed, or be treated or considered as having been filed, or be altered or amended, unless by order of the J udge Ordinary, or of one of the registrars, to be obtained on summons. The expense of obtaining such order shall fall on the party applying for it, unless the Judge Ordinary or registrar shall otherwise direct. 38. Applications for further particulars of matters pleaded are to be made to the Judge Ordinary, or to one of the registrars in his absence, by summons, and not by motion. See also Eules 181 to 184. Service of Pleadings, &c. 39. It shall be sufficient to leave all pleadings and other in- struments, personal service of which is not expressly required by these rules and regulations, at the respective addresses furnished by or on behalf of the several parties to the cause. See also Eule 114. Mode of Trial. 40. When the pleadings on being concluded have raised any questions of fact, the petitioner, within fourteen days from the filing of the last pleading, or at the expiration of that time, on the next day appointed for hearing motions in this Court, or in case the petitioner should fail to do so at such time, either of the respondents on whose behalf such questions have been raised, may apply to the Judge Ordinary by motion to direct the truth of such questions of fact to be tried by a special or common jury. See also Eule 205. Questions of Fact for the Jury. 41. Whenever the Judge Ordinary directs the issues of fact in a cause to be tried by a jury, the questions of fact raised by the pleadings are to be briefly stated in writing by the petitioner, and settled by one of the registrars. 42. Should the petitioner fail to prepare and deposit the questions for settlement in the registry within fourteen days after the Judge Ordinary has directed the mode of trial, either of the respondents on whose behalf such questions have been raised shall be at liberty to do so. RULES AND REGULATIONS. 663 43. After the questions have been settled by the registrar, the party who has deposited the same shall deliver a copy thereof as settled to each of the other parties to be heard on the trial of the cause, and either of such parties shall be at liberty to apply to the Judge Ordinary, by summons within eight days, or at the expiration of that time on the next day appointed for hearing summonses in this Court, to alter or amend the same, and his decision shall be final. Setting down the Cause for Trial or Hearing. 44. In cases to be tried by a jury, the petitioner, after the expiration of eight days from the delivery of copies of the questions for the jury to the opposite parties, or from alteration or amendment of the same, in pursuance of the order of the Judge Ordinary, shall file such questions as finally settled in the registry, and at the same time set down the cause as ready for trial, and on the same day give notice of his having done so to each party for whom an appearance has been entered. See also Rule 206. 45. In cases to be heard without a jury, the petitioner shall, after obtaining directions as to the mode of hearing, set the cause down for hearing, and on the same day give notice of his having done so to each party in the cause for whom an appear- ance has been entered. See also Rules 205 and 206. 46. If the petitioner fail to file the questions for the jury, or to set down the cause for trial or hearing, or to give due notice thereof, for the space of one month, after directions have been given as to the mode in which the cause shall be tried or heard, either of the respondents entitled to be heard at such trial or hearing may file the questions for the jury, and set the cause down for trial or hearing, and shall on the same day give notice of his having done so to the petitioner, and to each of the other parties to the cause for whom an appearance has been entered. 47. A copy of every notice of the cause being set down for trial or hearing shall be filed in the registry, and the cause shall come on in its turn, unless the Judge Ordinary shall otherwise direct. Trial or Hearing. 48. No cause shall be called on for trial or hearing until after the expiration of ten days from the day when the same has been set down for trial or hearing, and notice thereof has been given, save with the consent of all parties to the suit. 664 APPENDIX A. 49. The registrar shall enter in the Court Book the finding of the jury and the decree of the Court, and shall sign the same. 50. Either of the respondents in the cause, after entering an appearance, without filing an answer to the petition in the prin- cipal cause, may be heard in respect of any question as to costs, and a respondent, who is husband or wife of the petitioner, may be heard also in respect to any question as to custody of children, but a respondent who may be so heard is not at liberty to bring in affidavits touching matters in issue in the principal cause, and no such affidavits can be read or made use of as evidence in the cause. Evidence taken by Affidavit. 51. When the Judge Ordinary has directed that all or any of the facts set forth in the pleadings be proved by affidavits, such affidavits shall be filed in the registry within eight days from the time when such direction was given, unless the Judge Ordinary shall otherwise direct. See also Buie 188. 52. Counter-affidavits as to any facts to be proved by affidavit may be filed within eight days from the filing of the affidavits which they are intended to answer. 53. Copies of all such affidavits and counter-affidavits shall on the day the same are filed be delivered to the other parties to be heard on the trial or hearing of the cause, or to their proctors, solicitors, or attorneys. 54. Affidavits in reply to such counter-affidavits cannot be filed without permission of the Judge Ordinary or of the registrars in his absence. 55. Application for an order for the attendance of a deponent for the purpose of being cross-examined in open Court shall be made to the Judge Ordinary, on summons. Proceedings by Petition. 56. Any party to a cause who has entered an appearance may apply on summons to the Judge Ordinary, or in his absence to the registrars, to be heard on his petition touching any collateral question which may arise in a suit. 57. The party to whom leave has been given to be heard on his petition shall within eight days file his act on petition in the registry, and on the same day deliver a copy thereof to such parties in the cause as are required to answer thereto. 58. Each party to whom a copy of an act on petition is delivered shall within eight days after receiving the same file RULES AND REGULATIONS. 665 his or her answer thereto in the registry, and on the same day deliver a copy thereof to the opposite party, and the same course shall be pursued with respect to the reply, rejoinder, &c., until the act on petition is concluded. 59. A Eorm of Act on Petition, Answer, and Conclusion is given in Appendix A (see pp. 398 — 403). 60. Each party to the act on petition shall within eight days from that on which the last statement in answer is filed, file in the registry such affidavits and other proofs as may be necessary in support of their several averments. 61. After the time for filing affidavits and proofs has expired, the party filing the act on petition is to set down the petition for hearing in the same manner as a cause; and in the event of his failing to do so within a month any party who has filed an answer thereto may set the same down for hearing, and the petition will be heard in its turn with other causes to be heard by the Judge Ordinary without a jury. New Trial and Hearing (6). 62. An application for a new trial of the issues of fact tried by a jury or for a re-hearing of a cause shall be made to a Divisional Court of the Probate, Divorce, and Admiralty Divi- sion, and shall be by notice of motion filed in the registry, stating the grounds of the application, and whether all or part only of the verdict, or findings, or decree is complained of; and such notice of motion shall be filed and served upon the other parties in the cause, or their solicitors, within eight days after the trial or hearing, and the motion shall be made eight days after service of the notice of motion, if a Divisional Court shall be then sitting, or otherwise on the first day appointed for a sitting of *the Divisional Court after the expiration of the eight days, and the time of the vacations shall not be reckoned in the computation of time for serving such notice of motion. 62 a. The notice of motion may be amended at any time by leave of the Court or a judge on such terms as the Court or judge may think fit. (5) Since the passing of the Judicature Act, 1890, every applica- tion for a new trial must be made in the first instance to the Court of Appeal. A motion for a re-hearing, however, is still to be made in the first instance to the Divisional Court: Smith v. Smith , C. A. (1897) 293. 666 APPENDIX A. Petition for reversal of Decree of Judicial Separation. 63. A petition to the Court for the reversal of a decree of judicial separation must set out the grounds on which the peti- tioner relies. — A form of such Petition is given in Appendix A (see p. 406). 64. Before such a petition can be filed, an appearance on behalf of the party praying for a reversal of the decree of judicial separation must be entered in the cause in which the decree has been pronounced. 65. A certified copy of such a petition, under seal of the Court, shall be delivered personally to the party in the cause in whose favour the decree has been made, who may within fourteen days file an answer thereto in the registry, and shall on the day on which the answer is filed deliver a copy thereof to the other party in the cause, or to his or her proctor, solicitor, or attorney. 66. All subsequent pleadings and proceedings arising from such petition and answer shall be filed and carried on in the same manner as before directed in respect of an original petition for judicial separation, and answer thereto, so far as such direc- tions are applicable. Demurrer. 67. All demurrers are to be set down for hearing in the same manner as causes, and will come on in their turn with other causes to be heard by the Judge Ordinary without a jury, unless the Judge Ordinary shall direct otherwise. Intervention of the Queen's Proctor. 68. The Queen’s Proctor shall, within fourteen days after he has obtained leave to intervene in any cause, enter an appear- ance and plead to the petition; and on the day he files his plea in the registry shall deliver a copy thereof to the petitioner, or to his proctor, solicitor, or attorney. 69. All subsequent pleadings and proceedings in respect to the Queen’s Proctor’s intervention in a cause shall be filed and carried on in the same manner as before directed in respect of the pleadings and proceedings of the original parties to the cause. See also Rule 202. Showing Cause against a Decree. 70. Any person wishing to show cause against making absolute a decree nisi for dissolution of a marriage shall enter an appear- ance in the cause in which such decree nisi has been pronounced. RULES AND REGULATIONS. 66 71. Every such person shall at the time of entering an appear- ance, or within four days thereafter, file affidavits setting forth the facts upon which he relies. 72. Upon the same day on which such person files his affidavits he shall deliver a copy of the same to the party in the cause in whose favour the decree nisi has been pronounced. 73. The party in the cause in whose favour the decree nisi has been pronounced may, within eight days after delivery of the affidavits, file affidavits in answer, and shall, upon the day such affidavits are filed, deliver a copy thereof to the person showing cause against the decree being made absolute. 74. The person showing cause against the decree nisi being made absolute may within eight days file affidavits in reply, and shall upon the same day deliver copies thereof to the party sup- porting the decree nisi. 75. No affidavits are to be filed in rejoinder to the affidavits in reply without permission of the Judge Ordinary or of one of the registrars in his absence. 76. The questions raised on such affidavits shall be argued in such manner and at such time as the Judge Ordinary may on application by motion direct; and if he thinks fit to direct any controverted questions of fact to be tried by a jury, the same shall be settled and tried in the same manner and subject to the same rules as any other issue tried in this Court. Rules 70 to 76 not applicable to the Queen’s Proctor. See Rule 202. Appeals to the full Court (c). 77. An appeal to the full Court from a decision of the Judge Ordinary must be asserted in writing and the instrument of appeal filed in the registry within the time allowed by law for appealing from such decision; and on the same day on which the appeal is filed, notice thereof, and a copy of the appeal, shall be delivered to each respondent in the appeal, or to his or her proctor, solicitor, or attorney. 78. The appellant within ten days after filing his instrument of appeal, or within such further time as may be allowed by the Judge Ordinary, or by the registrars in his absence, shall file in the registry his case in support of the appeal in triplicate, and on the same day deliver a copy thereof to each respondent in the appeal, or to his proctor, solicitor, or attorney, who, within ten ( c ) Now the Court of Appeal. 668 APPENDIX A. days from the time of such filing and delivery or from such further time as may be allowed for the purpose by the Judge Ordinary, or the registrars in his absence, shall be at liberty to file in the registry a case against the appeal, also in triplicate, and the respondent shall on the same day deliver a copy thereof to the appellant, or to his proctor, solicitor, or attorney. 79. After the expiration of ten days from the time when the respondent has filed his case, or, if he has filed none, from the time allowed him for the purpose, the appeal shall stand for hearing at the next sittings of the full Court, and will be called on in its turn, unless otherwise directed. Decree absolute. 80. All applications to make absolute a decree nisi for dis- solution of a marriage must be made to the Court by motion. In support of such applications it must be shown by affidavit filed with the case for motion that search has been made in the proper books at the registry up to within two days of the affidavit being filed, and that at such time no person had obtained leave to intervene in the cause, and that no appearance had been entered nor any affidavits filed on behalf of any person wishing to show cause against the decree nisi being made absolute; and in case leave to intervene had been obtained, or appearance entered, or affidavits filed on behalf of any such person, it must be shown by affidavit what proceedings, if any, had been taken thereon, but it shall not be necessary to file a copy of the decree nisi. See also Eules 194 and 207. Alimony. 81. The wife, being the petitioner in a cause, may file her petition for alimony pending suit at any time after the citation has been duly served on the husband, or after order made by the Judge Ordinary to dispense with such service, provided the factum of marriage between the parties is established by affidavit previously filed. 82. The wife, being the respondent in a cause, after having entered an appearance, may also file her petition for alimony pending suit. 83. A Porm of Petition for Alimony is given in Appendix A (see p. 447). 84. The husband shall, within eight days after the filing and RULES AND REGULATIONS. 669 delivery of a petition for alimony, file his answer thereto upon oath. 85. The husband, being respondent in the cause, must enter an appearance before he can file an answer to a petition for alimony. 86. The wife, if not satisfied with the husband’s answer, may object to the same as insufficient, and apply to the Judge Ordinary on motion to order him to give a further and fuller answer, or to order his attendance on the hearing of the petition for the purpose of being examined thereon. See also Rule 189. 87. In case the answer of the husband alleges that the wife has property of her own, she may (within eight days) file a reply on oath to that allegation; but the husband is not at liberty to file a rejoinder to such reply without permission of the Judge Ordinary, or of one of the registrars in his absence. 88. A copy of every petition for alimony, answer and reply, must be delivered to the opposite party, or to his or her proctor, solicitor, or attorney, on the day the same is filed. 89. After the husband has filed his answer to the petition for alimony (subject to any order as to costs), or, if no answer is filed, at the expiration of the time allowed for filing an answer, the wife may proceed to examine witnesses in support of her petition, and apply by motion for an allotment of alimony pend- ing suit, notice of the motion, and of the intention to examine witnesses, being given to the husband, or to his proctor, solicitor, or attorney, four days previously to the motion being heard and the witnesses examined, unless the Judge Ordinary shall dispense with such notice. See also Rules 191 and 192. 90. No affidavits can be read or made use of as evidence in support of or in opposition to the averments contained in a petition for alimony, or in an answer to such a petition, or in a reply, except such as may be required by the Judge Ordinary or by one of the registrars. 91. A wife who has obtained a final decree of judicial separa- tion in her favour, and has previously thereto filed her petition for alimony pending suit, on such decree being affirmed on appeal to the full Court, or after the expiration of the time for appeal- ing against the decree, if no appeal be then pending, may apply to the Judge Ordinary by motion for an allotment of permanent alimony; provided that she shall, eight days at least before making such application, give notice thereof to the husband, or to his proctor, solicitor, or attorney. See also Rule 190. 670 APPENDIX A. 92. A wife may at any time after alimony has been allotted to her, whether alimony pending suit or permanent alimony, file her petition for an increase of the alimony allotted by reason of the increased faculties of the husband, or the husband may file a petition for a diminution of the alimony allotted by reason of reduced faculties; and the course of proceeding in such cases shall be the same as required by these rules and regulations in respect of the original petition for alimony, and the allotment thereof, so far as the same are applicable. 93. Permanent alimony shall, unless otherwise ordered, com- mence and be computed from the date of the final decree of the Judge Ordinary, or of the full Court on appeal, as the case may be. 94. Alimony, pending suit, and also permanent alimony, shall be paid to the wife, or to some person or persons to be nominated in writing by her, and approved of by the Court, as trustee or trustees on her behalf. Maintenance and Settlements. 95. Applications to the Court to exercise the authority given by sections 32 and 45 of 20 & 21 Viet. c. 85, and by section 5 of the 22 & 23 Viet. c. 61, are to be made in a separate petition, which must, unless by leave of the judge, be filed as soon as by the said statutes such applications can be made, or within one month thereafter. 96. In cases of application for maintenance under section 32 of the 20 & 21 Viet. c. 85, such petition may be filed as soon as a decree nisi has been pronounced, but not before. 97. A certified copy of such petition, under seal of the Court, shall be personally served on the husband or wife (as the case may be), and on the person or persons who may have any legal or beneficial interest in the property in respect of which the appli- cation is made, unless the Judge Ordinary on motion shall direct any other mode of service, or dispense with service of the same on them or either of them. 98. The husband or wife (as the case may be), and the other person or persons (if any) who are served with such petition, within fourteen days after service, may file his, her, or their answer on oath to the said petition, and shall on the same day deliver a copy thereof to the opposite party, or to his proctor, solicitor, or attorney. 99. Any person served with the petition, not being a party to the principal cause, must enter an appearance before he or she can file an answer thereto. RULES AND REGULATIONS. 671 100. Within fourteen days from the filing the answer, the opposite party may file a reply thereto, and the same period shall be allowed for filing any further pleading by way of rejoinder. 101 . Such pleadings, when completed, shall in the first instance be referred to one of the registrars, who shall investigate the averments therein contained, in the presence of the parties, their proctors, solicitors, or attorneys, and who for that purpose shall be at liberty to require the production of any documents referred to in such pleadings, or to call for any affidavits, and shall report in writing to the Court the result of his investigation, and any special circumstances to be taken into consideration with reference to the prayer of the petition. See also Rule 204. 102. The report of the registrar shall be filed in the registry by the husband or wife on whose behalf the petition has been filed, who shall give notice thereof to the other parties heard by the registrar; and either of the parties, within fourteen days after such notice has been given, if the Judge Ordinary be then sitting to hear motions, otherwise on the first day appointed for motions after the expiration of fourteen days, may be heard by the Judge Ordinary on motion in objection to the registrar’s report, or may apply on motion for a decree or order to confirm the same, and to carry out the prayer of the petition. 103. The costs of a wife of and arising from the said petition or answer shall not be allowed on taxation of costs against the husband before the final decree in the principal cause, without direction of the Judge Ordinary. Custody of and Access to Children. 104. Before the trial or hearing of a cause a husband or wife who are parties to it may apply for an order with respect to the custody, maintenance, or education of or for access to children, issue of their marriage, to the Judge Ordinary, by motion founded on affidavit. See also Rule 212. Guardians to Minors. 105. A minor above the age of seven years may elect any one or more of his or her next of kin, or next friends, as guardian, for the purpose of proceeding on his or her behalf as petitioner, respondent, or intervener in a cause. 672 APPENDIX A. 106. The necessary instrument of election must be filed in the registry before the guardian elected can be permitted to extract a citation or to enter an appearance on behalf of the minor. 107. When a minor shall elect some person or persons other than his or her next of kin, as guardian for the purposes of a suit, or when an infant (under the age of seven years) becomes a party to a suit, application, founded on affidavit, is to be made to one of the registrars, who will assign a guardian to the minor or infant for such suit. 108. It shall not be necessary for a minor who, as an alleged adulterer, is made a co-respondent in a suit, to elect a guardian or to have a guardian assigned to him for the purpose of con- ducting his defence. Subpoenas. 109. Every subpoena shall be written or printed on parchment, and may include the names of any number of witnesses. The party issuing the same, or his or her proctor, solicitor, or attorney, shall take it, together with a praecipe, to the registry, and there get it signed and sealed, and there deposit the praecipe. See also Rule 180. Writs of Attachment and other Writs. 110. Applications for writs of attachment, and also for writs of fieri facias and of sequestration, must be made to the Judge Ordinary by motion in Court. See also Rules 179 and 203. 111. Such writs, when ordered to issue, are to be prepared by the party at whose instance the order has been obtained, and taken to the registry, with an office copy of the order, and, when approved and signed by one of the registrars, shall be sealed with the seal of the Court, and it shall not be necessary for the Judge Ordinary or for other judges of the Court to sign such writs. 112. Any person in custody under a writ of attachment may apply for his or her discharge to the Judge Ordinary if the Court be then sitting; if not, then to one of the registrars, who for good cause shown shall have power to order such discharge. Notices. 113. All notices required by these rules and regulations, or by the practice of the Court shall be in writing, and signed by the party, or by his or her proctor, solicitor, or attorney. RULES AND REGULATIONS. 673 Service of Notices, &c. 114. It shall be sufficient to leave all notices and copies of pleadings and other instruments which by these rules and re- gulations are required to be given or delivered to the opposite parties in the cause, or to their proctors, solicitors, or attorneys, and personal service of which is not expressly required at the address furnished as aforesaid by the petitioner and respondent respectively. See also Rule 39. 115. When it is necessary to give notice of any motion to be made to the Court, such notice shall be served on the opposite parties who have entered an appearance four clear days pre- viously to the hearing of such motion, and a copy of the notice so served shall be filed in the registry with the case for motion, but no proof of the service of the notice will be required, unless by direction of the Judge Ordinary. 116. If an order be obtained on motion without due notice to the opposite parties, such order will be rescinded on the appli- cation of the parties upon whom the notice should have been served; and the expense of and arising from the rescinding of such order shall fall on the party who obtained it, unless the Judge Ordinary shall otherwise direct. 117. When it is necessary to serve personally any order or decree of the Court, the original order or decree, or an office copy thereof, under seal of the Court, must be produced to the party served, and annexed to the affidavit of service marked as an exhibit by the commissioner or other person before whom the affidavit is sworn. Office Copies, Extracts, &c. 118. The registrars of the principal registry of the Court of Probate are to have the custody of all pleadings and other docu- ments now or hereafter to be brought in or filed, and of all entries of orders and decrees made in any matter or suit depending in the Court for Divorce and Matrimonial Causes; and all rules and orders, and fees payable in respect of searches for and inspection or copies of and extracts from and attendance with books and documents in the registry of the Court of Probate, shall extend to such pleadings and other documents brought in or filed, and all entries of orders and decrees made in the Court for Divorce and Matrimonial Causes, save that the length of copies and extracts shall in all cases be computed at the rate of seventy- two words per folio. D.M.C. 43 674 APPENDIX A. 119. Office copies or extracts furnished from the registry of the Court of Probate will not be collated with the originals from which the same are copied, unless specially required. Every copy so required to be examined shall be certified under the hand of one of the principal registrars of the Court of Probate to be an examined copy. 120. The seal of the Court will not be affixed to any copy which is not certified to be an examined copy. Time fixed by these Buies. 121. The Judge Ordinary shall in every case in which a time is fixed by these rules and regulations for the performance of any act, or for any proceeding in default, have power to extend the same to such time and with such qualifications and restric- tions and on such terms as to him may seem fit. 122. To prevent the time limited for the performance of any act, or for any proceeding in default, from expiring before appli- cation can be made to the Judge Ordinary for an extension thereof, any one of the registrars may, upon reasonable cause being shown, extend the time, provided that such time shall in no case be extended beyond the day upon which the Judge Ordinary shall next sit in chambers. See also Rules 181 to 184. 123. The time fixed by these rules and regulations for the per- formance of any act, or for any proceeding in a cause, shall in all cases be exclusive of Sundays, Christmas Day, and Good Eriday. Protection Orders. 124. Applications on the part of a wife deserted by her husband for an order to protect her earnings and property, acquired since the commencement of such desertion, shall be made in writing to the Judge Ordinary in chambers, and supported by affidavit. See also Rule 197. 125. Applications for the discharge of any order made to protect the earnings and property of a wife are to be made to the Judge Ordinary by motion, and supported by affidavit. Notice of such motion, and copies of any affidavit or other docu- ment to be read or used in support thereof, must be personally served on the wife eight clear days before the motion is heard. Bond not required. 126. On a decree of judicial separation being pronounced, it shall not be necessary for either party to enter into a bond con- ditioned against marrying again. RULES AND REGULATIONS. 675 Change of Proctor, Solicitor, or Attorney. 127 and 128. Any party to a cause shall be at liberty to change his or her solicitor, without an order for that purpose upon notice of such change, containing an address for service of pleadings and other instruments, within three miles of the General Post Office, being filed in the registry, but until such notice is filed and a copy thereof served on the other parties in the cause, the former solicitor shall be considered the solicitor of the party. Order for the immediate Examination of Witness. 129. Application for an order for the immediate examination of a witness who is within the jurisdiction of the Court is to be made to the Judge Ordinary, or to the registrars in his absence, by summons, or if on behalf of a petitioner proceeding in default of appearance of the parties cited in the cause without summons before one of the registrars, who will direct the order to issue, or refer the application to the Judge Ordinary, as he may think fit. See also Rules 181 to 184. 130. Such witness shall be examined vivS, voce, unless other- wise directed, before a person to be agreed upon by the parties in the cause, or to be nominated by the J udge Ordinary or by the registrars to whom the application for the order is made. 131. The parties entitled to cross-examine the witness to be examined under such an order shall have four clear days’ notice of the time and place appointed for the examination, unless the Judge Ordinary or the registrars to whom the application is made for the order shall direct a shorter notice to be given. Commissions and Requisitions for Examination of Witnesses. 132. Application for a commission or requisition to examine witnesses who are out of the jurisdiction of the Court is to be made by summons, or if on behalf of a petitioner proceeding in default of appearance without summons, before one of the re- gistrars, who will order such commission or requisition to issue, or refer the application to the Judge Ordinary, as he may think fit. 133. A commission or requisition for examination of witnesses may be addressed to any person to be nominated and agreed upon by the parties in the ; cause, and approved of by the .registrar, or for want of agreement to be nominated by the registrar to whom the application is made. 134. The commission or requisition is to be drawn up and pre- 43 ( 2 ) 676 APPENDIX A. pared by the party applying for the same, and a copy thereof shall be delivered to the parties entitled to cross-examine the witnesses to be examined thereunder two clear days before such commission or requisition shall issue, under seal of the Court, and they or either of them may apply to one of the registrars by summons to alter or amend the commission or requisition, or to insert any special provision therein, and the registrar shall make an order on such application, or refer the matter to the Judge Ordinary. 135. Any of the parties to the cause may apply to one of the registrars by summons for leave to join in a commission or re- quisition, and to examine witnesses thereunder ; and the registrar to whom the application is made may direct the necessary altera- tions to be made in the commission or requisition for that purpose, and settle the same, or refer the application to the Judge Ordinary. 136. After the issuing of a summons to show cause why a party to the cause should not have leave to join in a commission or requisition, such commission or requisition shall not issue under seal without the direction of one of the registrars. 137. In case a husband or wife shall apply for and obtain an order or a commission or requisition for the examination of witnesses, the wife shall be at liberty, without any special order for that purpose, to apply by summons to one of the registrars to ascertain and report to the Court what is a sufficient sum of money to be paid or secured to the wife to cover her expenses in attending at the examination of such witnesses in pursuance of such order, or in virtue of such commission or requisition, and such sum of money shall be paid or secured before such order or such commission or requisition shall issue from the registry, unless the Judge Ordinary or one of the registrars in his absence shall otherwise direct. See also Eule 198. Affidavits. 138. Every affidavit is to be drawn in the first person, and the addition and true place of abode of every deponent is to be inserted therein. 139. In every affidavit made by two or more persons, the names of the several persons making it are to be written in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer, it shall be sufficient to state that it was sworn by both (or all) of the above-named deponents. 140. No affidavit having, in the jurat or body thereof, any RULES AND REGULATIONS. 677 interlineation, alteration, or erasure shall, without leave of the Court or of one of the registrars, be filed or made use of in any matrimonial cause or matter unless the interlineation or altera- tion (other than by erasure) is authenticated by the initials of the officer taking the affidavit, nor, in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure, are re-written and signed and initialed in the margin of the affidavit by the officer taking it. 141. Where an affidavit is made by any person who is blind, or who, from his or her signature or otherwise, appears to be illiterate, the registrar, commissioner, or other authority before whom such affidavit is made is to state in the jurat that the affidavit was read in the presence of the party making the same, and that such party seemed perfectly to understand the same, and also made his or her mark, or wrote his or her signature thereto, in the presence of the registrar, commissioner, or other authority before whom the affidavit was made. 142. No affidavit is to be deemed sufficient which has been sworn before the party on whose behalf the same is offered, or before his or her proctor, solicitor, or attorney, or before a partner or clerk of his or her proctor, solicitor, or attorney. 143. Proctors, solicitors, and attorneys, and their clerks re- spectively, if acting for any other proctor, solicitor, or attorney, shall be subject to the rules and regulations in respect of taking affidavits which are applicable to those in whose stead they are acting. 144. No affidavit can be read or used unless the proper stamps to denote the fees payable on filing the same are delivered with such affidavit. 145. Where a special time is fixed for filing affidavits, no affidavit filed after that time shall be used unless by leave of the Judge Ordinary. 146. The above rules and regulations in respect of affidavits shall, so far as the same are applicable, be observed in respect to affirmations and declarations to be read or used in the Court for Divorce and Matrimonial Causes. Cases for Motion. 147. Cases for motion are to set forth the style and object of, and the names and descriptions of the parties to, the cause or proceeding before the Court; the proceedings already had in the cause, and the dates of the same ; the prayer of the party on whose 678 APPENDIX A. behalf the motion is made, and briefly, the circumstances on which it is founded. 148. If the cases tendered are deficient in any of the above particulars, the same shall not be received in the registry without permission of one of the registrars. 149. On depositing the case in the registry, and giving notice of the motion, the affidavits in support of the motion, and all original documents referred to in such affidavits, or to be referred to by counsel on the hearing of the motion, must be also left in the registry; or in case such affidavits or documents have been already filed or deposited in the registry, the same must be searched for, looked up, and deposited with the proper clerk, in order to their being sent with the case to the Judge Ordinary. 150. Copies of any affidavit or documents to be read or used in support of a motion are to be delivered to the opposite parties to the suit who are entitled to be heard in opposition thereto. Taxing Bills of Costs. 151. All bills of costs are referred to the registrars of the prin- cipal registry of the Court of Probate for taxation, and may be taxed by them, without any special order for that purpose. Such bills are to be filed in the registry. See also Eule 177. 152. Notice of the time appointed for taxation will be for- warded to the party filing the bill, at the address furnished by such party. 153. The party who has obtained an appointment to tax a bill of costs shall give the other party or parties to be heard on the taxation thereof at least one clear day’s notice of such appoint- ment, and shall at or before the same time deliver to him or them a copy of the bill to be taxed. 154. When an appointment has been made by a registrar of the Court of Probate for taxing any bill of costs, and any parties to be heard on the taxation do not attend at the time appointed, the registrar may nevertheless proceed to tax the bill after the expiration of a quarter of an hour, upon being satisfied by affidavit that the parties not in attendance had due notice of the time appointed. 155. The bill of costs of any proctor, solicitor, or attorney will be taxed on his application as against his client, after sufficient notice given to the person or persons liable for the payment thereof, or on the application of such person or persons, after sufficient notice given to the practitioner. RULES AND REGULATIONS. 679 156. The fees payable on the taxation of any bill of costs shall be paid by the party on whose application the bill is taxed, and shall be allowed as part of such bill; but if more than one-sixth of the amount of any bill of costs taxed as between practitioner and client is disallowed on the taxation thereof, no costs incurred in such taxation shall be allowed as part of such bill. See also Rule 200. 157. If an order for payment of costs is required, the same may be obtained by summons, on the amount of such costs being certified by the registrar. See also Rules 178, 179, and 201. Wife's Costs. — As amended 14 th July , 1875. 158. After directions given as to the mode of hearing or trial of a cause or in an earlier stage of a cause by order of the Judge Ordinary, or of the registrars, to be obtained on summons, a wife who is petitioner, or has entered an appearance as respondent in a cause, may file her bill or bills of costs for taxation as against her husband, and the registrar to whom such bills of costs are referred for taxation shall, when directions as to the mode of hearing or trial have been given, ascertain what is a sufficient sum of money to be paid into the registry, or what is a sufficient security to be given by the husband to cover the costs of the wife of and incidental to the hearing of the cause; and shall there- upon issue an order upon the husband to pay or secure the said sum within a time to be fixed by the registrar; provided that in case the husband should by reason of his wife having separate property, or for other reasons, dispute her right to recover any costs pending suit against him, the registrar may suspend the order to pay the wife’s taxed costs, or to pay or secure the sum ascertained to be sufficient to cover her costs of and incidental to the hearing of the cause, for such length of time as shall seem to him necessary to enable the husband to obtain the decision of the Court as to his liability. But see Rule 205. 159. When on the hearing or trial of a cause the decision of the Judge Ordinary or the verdict of the jury is against the wife, no costs of the wife of and incidental to such hearing or trial shall be allowed as against the husband, except such as shall be applied for, and ordered to be allowed by the Judge Ordinary, at the time of such hearing or trial. See also Rule 201. 680 APPENDIX A. Summonses. 160. A summons may be taken out by any person in any matter or suit depending in the Court for Divorce and Matrimonial Causes, provided there is no rule or practice requiring a different mode of proceeding. 161. The name of the cause or matter, and of the agent taking out the summons, is to be entered in the Summons Book, and a true copy of the summons is to be served on the party summoned one clear day at least before the summons is returnable, and before 7 o’clock p.m. On Saturdays the copy of the summons is to be served before 2 o’clock p.m. 162. On the day and at the hour named in the summons the party taking out the same is to present himself with the original summons at the judge’s chambers, or elsewhere appointed for hearing the same. 163. Both parties will be heard by the Judge Ordinary, who will make such order as he may think fit, and a minute of such order will be made by one of the registrars in the Summons Book. See also Buies 181 to 184. 164. If the party summoned do not appear after the lapse of half an hour from the time named in the summons, the party taking out the summons shall be at liberty to go before the Judge Ordinary, who will thereupon make such order as he may think fit. 165. An attendance on behalf of the party summoned for the space of half an hour, if the party taking out the summons do not during such time appear, will be deemed sufficient, and bar the party taking out the summons from the right to go before the Judge Ordinary on that occasion. 166. If a formal order is desired, the same may be had on the application of either party, and for that purpose the original summons, or the copy served on the party summoned, must be filed in the registry. An order will thereupon be drawn up, and delivered to the person filing such summons or copy. 167. If a summons is brought to the registry, with consent to an order endorsed thereon, signed by the party summoned, or by his proctor, solicitor, or attorney, an order will be drawn up without the necessity of going before the Judge Ordinary; pro- vided that the order sought is in the opinion of the registrar one which, under the circumstances, would be made by the Judge Ordinary. 168. The same rules and regulations shall, so far as applicable. RULES AND REGULATIONS. 681 be observed in respect of summonses which may be heard and disposed of by the registrars. Payment of Money out of Court. 169, 170 and 171. Proceedings altered by “Supreme Court Funds Rules, 1884.” Registries and Officers. 172. The registry for the Court for Divorce and Matrimonial Causes, and the clerks employed therein, shall be subject to and under the control of the registrars of the principal registry of the Court of Probate. 173. The record keepers, the sealer, and other officers of the principal registry of the Court of Probate, shall discharge the same or similar duties in the Court for Divorce and Matrimonial Causes, and in the registry thereof, as they discharge in the Court of Probate and the principal registry thereof. Proceedings under “ The Legitimacy Declaration Act, 1858.” 174. The above rules and regulations, so far as the same may be applicable, shall extend to applications and proceedings under “ The Legitimacy Declaration Act, 1858.” Additional Rules, 30th January, 1869. Restitution of Conjugal Rights. 175. The affidavit filed with the petition, as required by Rule 2, shall further state sufficient facts to satisfy one of the registrars that a written demand for cohabitation and restitution of con- jugal rights has been made by the petitioner upon the party to be cited, and that after a reasonable opportunity for compliance therewith such cohabitation and restitution of conjugal rights have been withheld. 176. At any time after the commencement of proceedings for restitution of conjugal rights the respondent may apply by sum- mons to the judge, or to the registrars in his absence, for an order to stay the proceedings in the cause by reason that he or she is willing to resume or to return to cohabitation with the petitioner. As to Costs. 177. In all cases in which the Court at the hearing of a cause condemns any party to the suit in costs, the proctor, solicitor, or 682 APPENDIX A. attorney of the party to whom such costs are to be paid may forthwith file his bill of costs in the registry, and obtain an appointment for the taxation, provided that such taxation shall not take place before the time allowed for moving for a new trial or re-hearing shall have expired; or, in case a rule nisi should have been granted, until the rule is disposed of, unless the Judge Ordinary shall, for cause shown, direct a more speedy taxation. 178. Upon the registrar’s certificate of costs being signed, he shall at once issue an order of the Court for payment of the amount within seven days. See also Eules from 151 to 158, and 201. 179. This order shall be served on the proctor, solicitor, or attorney of the party liable, [or if it is desired to enforce the order by attachment on the party himself,] and if the costs be not paid within the seven days a writ of fieri facias or writ of sequestration shall be issued as of course in the registry, upon an affidavit of service of the order and non-payment. See also Eules 110, 111, and 203. As to Subpoenas. 180. The issuing of fresh subpoenas in each term shall be abolished, and it shall not be necessary to serve more than one subpoena upon any witness. Additional and Amended Eules, 23rd February, 1875. 181. All summonses heretofore heard by the registrars of the principal registry of the Court of Probate in the absence of the Judge Ordinary shall hereafter be heard before one or more of the registrars at the principal registry of that Court during the period appointed for the sittings of the Court at Westminster, as well as in the judge’s absence. 182. All rules and regulations in respect to summonses now heard before the Judge Ordinary in Chambers at Westminster shall, so far as the same are applicable, be observed in respect of the summonses heard before one or more of the registrars at the principal registry. See Eules from 160 to 168. 183. The registrar before whom the summons is heard will direct such order to issue as he shall think fit, or refer the matter at once to the Judge Ordinary. 184. Any person heard on the summons objecting to the order so issued under the direction of the registrars may, subject to any RULES AND REGULATIONS. 683 order as to costs, apply to the Judge Ordinary on summons to rescind or vary the same. Additional Rules, 14th July, 1875. Appearance. 185. Application for leave to enter an appearance after a pro- ceeding has been taken in default heretofore made to the Judge Ordinary on motion in pursuance of Rule 20 shall hereafter be made by summons before one of the registrars. See also Rule 20. Answer. 186. In case the time allowed for entry of appearance to a citation should be more than eight days after service thereof, a respondent who has entered an appearance may, within 14 days from the expiration of the time allowed for the entry of appear- ance, file in the registry an answer to the petition. See also Rule 28. General Rule as to Pleadings. 187. Either of the parties before the Court desiring to alter or amend a pleading may apply by summons to one of the registrars for an order for that purpose. See also Rule 34. Evidence taken by Affidavit. 188. In an undefended cause when directions have been given that all or any of the facts set forth in the petition be proved by affidavits, such affidavits may be filed in the registry at any time up to 10 clear days before the cause is heard. See also Rule 51. Alimony. 189. Application for an order for a further and fuller answer to a petition for alimony, heretofore made to the J udge Ordinary on motion in pursuance of Rule 86, shall hereafter be made by summons before one of the registrars. See Rule 86. 190. A wife who has obtained a final decree of judicial separa- tion, on such decree being affirmed on appeal, or after the ex- piration of the time for appealing against the decree if no appeal be then pending, may apply to the Court by petition for an allot- ment of permanent alimony, though no alimony shall have been 684 APPENDIX A. allotted to her pending suit, and the Rules from 84 to 88, both inclusive, of the rules and regulations for this Court, bearing date 26th December, 1865, relating to petitions for alimony pend- ing suit as varied by these and other additional rules and regu- lations shall, so far as the same are applicable, be observed in respect to the proceedings upon such petitions for permanent alimony. See also Rules 84 to 88, and 91 and 92. 191 . All applications for an allotment of alimony pending suit, and for an allotment of permanent alimony heretofore made to the Court by motion in pursuance of Rules 89 and 91, shall here- after be referred to one of the registrars at the principal registry, who shall investigate the averments in the petition for alimony, answer, and reply, in the presence of the parties, their proctors, solicitors, or attorneys, and who, if he think fit, shall be at liberty to require the attendance of the husband for the purpose of being examined or cross-examined, and to take the oral evidence of witnesses, and to require the production of any documents or to call for affidavits, and shall direct such order to issue as he shall think fit, or refer the application, or any question arising out of it, to the Judge Ordinary for his decision. See Rules 89 and 91. 192. Any person heard on the reference as to alimony before one of the registrars, objecting to the order issued under his direction, may (subject to any order as to costs) apply to the Judge Ordinary on summons to rescind or vary the same. Dismissal of Petition. 193. When an order has been made for the dismissal of a petition on payment of costs, the cause will not be removed from the list of causes in the Court books without an order of one of the registrars, to obtain which it must be shown to his satisfaction that the costs have been paid. Decree Absolute. 194. In case application by motion to make absolute a decree nisi for the dissolution of a marriage should from any cause be deferred beyond six days from the time when the affidavit re- quired by Rule 80 is filed with the case for motion, it must be shown by further affidavit that search has been made in the proper books up to within six clear days of the motion for decree absolute being heard, and that at such time no person had obtained leave to intervene, and that no appearance had been RULES AND REGULATIONS. 685 entered nor any affidavits filed on behalf of any person wishing to show cause against the decree nisi being made absolute; and in case leave to intervene had been obtained, or appearance entered or affidavits filed on behalf of any such person, it must also be shown by such further affidavit what proceedings, if any, have been taken thereon. See also Rules 80 and 207. Custody, Maintenance, and Education of Children. 195. Rules from 97 to 102, both inclusive, of the rules and regulations for this Court, bearing date 26th December, 1865, shall, so far as the same are applicable, be observed in respect to applications by petition, after a final decree in a cause for orders and provision with respect to the custody, maintenance, and education of children, the marriage of whose parents was the subject of the decree under the authority given to the Court by 22 & 23 Viet. c. 61, s. 4. See Rules 97 to 102. Persons of Unsound Mind. 196. A committee duly appointed of a person found by inquisi- tion to be of unsound mind may take out a citation and prosecute a suit on behalf of such person ,as a petitioner, or enter an appear- ance, intervene, or proceed with the defence on behalf of such person as a respondent; but if no committee should have been appointed, application is to be made to one of the registrars, who will assign a guardian to the person of unsound mind, for the purpose of prosecuting, intervening in, or defending the suit on his or her behalf; provided that if the opposite party is already before the Court when the application for the assignment of a guardian is made he or she shall be served with notice by sum- mons of such application. Protection Orders. 197. In the affidavit in support of an application on the part of a wife deserted by her husband for an order to protect her earnings and property acquired since the commencement of such desertion, the applicant must state whether she has any know- ledge of the residence of her husband, and if he is known to be residing within the jurisdiction of the Court, he must be served personally with a summons to show cause why such order should not be made. See also Rule 124. 686 APPENDIX A. Commission and Requisitions for Examination of Witnesses. 198. The registrar to whom a commission or requisition for examination of witnesses is referred for settlement, on applica- tion on behalf of the wife, may proceed at once and without summons to ascertain what is a sufficient sum of money to be paid or secured to her to cover her expenses in attending at the examination of such witnesses, and shall thereupon issue an order upon the husband to pay or secure the said sum within a time to be fixed in such order. See also Rule 137. Costs. 199. The bond taken to secure the costs of a wife of and incidental to the hearing of a cause shall be filed in the registry of the Court of Probate, and shall not be delivered out or be sued upon without the order of the Court. 200. If more than one-sixth of the amount of any bill of costs taxed as between practitioner and client is disallowed on taxation thereof, the party on whose application the bill is taxed shall be at liberty to deduct the costs incurred by him in the taxation from the amount of the bill as taxed, if so much remains due, otherwise the same shall be paid by the practitioner to the person on whose application the bill is taxed. See also Rule 156. 201. The order for payment of costs of suit in which a re- spondent or co-respondent has been condemned by a decree nisi shall, if applied for before the decree nisi is made absolute, direct the payment thereof into the registry of the Court of Probate, and such costs shall not be paid out of the said registry to the> party entitled to receive them under the decree nisi until the decree absolute has been obtained; but a wife who is unsuccessful in a cause, and who at the hearing of the cause has, in pursuance of Rule 159, obtained an order of the Judge Ordinary that her costs of and incidental to the hearing or trial of the cause shall be allowed against her husband to the extent of the sum paid or secured by him to cover such costs, may nevertheless proceed at once to obtain payment of such costs after allowance thereof on taxation. See also Rules 157, 178, and 179. RULES AND REGULATIONS. 687 Additional Rules, 17th April, 1877. Showing Cause against a Decree Nisi. 202. When the Queen’s Proctor desires to show cause against making absolute a decree nisi for dissolution or nullity of mar- riage, he shall enter an appearance in the cause in which such decree nisi has been pronounced, and shall within fourteen days after entering appearance file his plea in the registry, setting forth the grounds upon which he desires to show cause as afore- said, and on the day he files his plea in the registry, shall deliver a copy thereof to the person in whose favour such decree has been pronounced, or to his or her solicitor, and all subsequent pleadings and proceedings in respect to such plea shall be filed and carried on in the same manner as directed by the existing Rules and Regulations Nos. 68 and 69, in regard to the plea of the Queen’s Proctor, filed after obtaining leave to intervene in a cause, and the existing Rules and Regulations from No. 70 to No. 76, both inclusive, shall no longer be applicable to the Queen’s Proctor on his showing cause as aforesaid, save as far as regards any proceedings already commenced in pursuance of the said rules and regulations. See Rules 68 and 69. Writs of Fieri Facias and other Writs. 203. In default of payment of any sum of money at the time appointed by any order of the Court for the payment thereof, a writ of fieri facias or writ of sequestration or writ of elegit shall be issued as of course in the registry upon an affidavit of service of the order and non-payment. See also Rules 110, 111, and 179. Maintenance and Settlements. 204. The registrar to whom pleadings are referred for investi- gation under Rule 101 shall, if he thinks fit, be at liberty to require the attendance of the husband or wife for the purpose of being examined or cross-examined, and to take the oral evidence of witnesses in the same manner as on a reference for an allot- ment of alimony. See Rule 101. 688 APPENDIX A. Additional and Amended Rules, July, 1880. Mode of Hearing or Trial. 205. It shall not be necessary in any case to apply to the Court by motion for directions as to the mode of hearing or trial of a cause. When the pleadings are concluded the parties to a cause may proceed in all respects as though upon the day of filing the last pleading a special direction had been given by the Court as to the mode of hearing or trial to the effect following: 1st. In cases in which damages are not claimed that the cause be heard by oral evidence before the Court itself, without a jury. 2nd. In cases in which damages are claimed that the cause be tried before the Court, with a common jury. And any party to a cause may apply by summons for a direc- tion that the cause may be heard or tried otherwise than is hereby provided. See Rules 40 and 45. 206. Before a cause is set down for hearing or trial the plead- ings and proceedings in the cause shall be referred to one of the registrars, who shall certify that the same are correct and in order, and the registrar to whom the .same are referred shall cause any irregularity in such pleadings or proceedings to be corrected, or refer any question arising therefrom to the Court for its direction; any party to the cause objecting to such direction of the registrar may (subject to any order as to costs) apply to the Court on summons to rescind or vary the same. Decree Absolute. 207. Application to make absolute a decree nisi for dissolution or nullity of a marriage need not hereafter be made to the Court by motion as directed by Rules 80 and 194, but it shall be a sufficient compliance with the said rules to file in the registry, with the affidavit or affidavits therein required, a notice in writ- ing setting forth that application is made for such decree absolute, which will thereupon be pronounced in open Court at a time appointed for that purpose. See Rules 80 and 194. Suits in Forma, Pauperis. 208. Applications for leave to prosecute or defend a suit in forma pauperis may hereafter be made to one of the registrars, RULES AND REGULATIONS. 689 who will make such order thereon as he may see fit or refer the application to the Court. 209. The affidavit required by’ Rule 26, if application is made by a wife to prosecute a suit against her husband in forma pauperis, shall state to the best of her knowledge and belief the amount of income or means of living of her husband. See also Rules 25 and 26. 210. When a husband has been admitted to prosecute a suit against his wife in forma pauperis, the wife may apply for an order that she be at liberty to proceed with her defence in forma pauperis on production of an affidavit that she has no separate property exceeding 25Z. in value after payment of her just debts. 211. When a wife has been permitted to prosecute a suit against her husband in forma pauperis, the husband may apply for leave to proceed with his defence in forma pauperis on pro- duction of an affidavit as to his income or means of living, and showing that besides his wearing apparel he is not worth 2 51. after payment of his just debts. Access to Children. 212. Application on behalf of a husband or wife, parties to a cause, for access to the children of their marriage may hereafter be made by summons before one of the registrars, who shall direct such order to issue as he thinks fit, subject to appeal to the Court by either party dissatisfied with the order as authorised by Rule 184. See also Rules 104 and 184. The Greek Marriages Act , 1884. 213. In pursuance of the provisions of the Act of Parliament 47 & 48 Viet. c. 20, s. 1, whereby it was enacted that any peti- tion to the Probate and Matrimonial Division of her Majesty’s High Court of Justice under the said Act should be accompanied by such affidavit verifying the same as the said Court might from time to time direct: Now, I, the Right Honourable Sir James Hannen, Knight, the president of the said division, do hereby direct that the affidavit verifying a petition under the said Act shall be in the form and to the effect required by Rule 2 ( z ) of the rules and 44 D.M.C. 690 APPENDIX A. regulations for her Majesty’s Court for Divorce and Matrimonial Causes, bearing date 26th December, 1865. (Signed) JAMES HANNEN. Dated 6th August, 1884. Maintenance and Settlements. 214. All applications to the Court to exercise the authority given by sections 2, 3 and 6 of 47 & 48 Viet. c. 68, are to be made in a petition, which may be filed as soon as by the said statutes such applications can be made, or at any time there- after. ( Not before the decree is made or before the time has expired for compliance with such decree .) 215. Eules 97 to 102, both inclusive, and 195 and 204, shall, so far as the same are applicable, be observed in respect to appli- cations by petition to exercise the authority given by the afore- said sections 2, 3 and 6 of 47 & 48 Viet. c. 68. 216. In divorce and matrimonial causes solicitors shall be en- titled to charge, and be allowed the fees set forth in the column headed “ Lower Scale ” in Appendix N annexed to the Eules of the Supreme Court, 1883, so far as the same are applicable to such causes. 217. The fees set forth in the column headed “Higher Scale ” in the said Appendix N, so far as the same are applicable, may be allowed either generally in any divorce or matrimonial cause, or as to the costs of any particular application made or business done therein if on special grounds arising out of the nature or importance or the difficulty or urgency of the case, the Court, or a judge, shall at the trial or hearing or further consideration of such a cause, or at the hearing of any application therein, whether the cause shall or shall not be brought to trial or hear- ing or to further consideration (as the case may be), so order, or if the taxing registrar, under directions given to him for that purpose by the Court or a judge, shall think that such allowance ought to be so made upon such special grounds as aforesaid. 218. Upon any reference to the taxing registrar to tax a bill of costs of a solicitor for the purpose of ascertaining the amount due to such solicitor in respect thereof, if such bill shall include charges for business done in any divorce or matrimonial cause, the taxing registrar may allow the fees set forth in the column “ Higher Scale ” in the said Appendix N, so far as the same are applicable in respect of such cause, or in respect of any particular application made or business done therein, if on such special RULES AND REGULATIONS. 691 grounds, as in the last preceding rule mentioned, he shall think that such allowance ought to be so made. 219. (October 24th, 1904.) In all proceedings before the Court for Divorce and Matrimonial Causes, the petition shall state whether or no there has been any, and if so what, proceedings previous thereto with reference to the marriage in the Divorce Division of the High Court, by and on behalf of either of the parties to the marriage. 220. (October 24th, 1905.) In all proceedings before the Court for Divorce and Matrimonial Causes, the petition shall state the description of the husband and the place of residence, and the domicil of the parties to the marriage at the time of the institu- tion of the suit. “ Explanation of above Rule ” [220]. By direction of the President [Gorell Barnes] the following matters as they stand at the time of the institution of the suit must be inserted in the body of the petition: — (1.) The description of the husband. (2.) The place of residence of each of the parties to the marriage. (3.) The domicil of the parties to the marriage, but unless the petitioner is asserting a domicil for the wife different from that of the husband, it will be sufficient if the domicil of the husband is stated. 44 ( 2 ) 692 APPENDIX B. — ♦ — PART I. MATRIMONIAL CAUSES ACTS, 1857—1884. Repealed 55 & 56 Yict. c. 19 (&). Ibid, as far as the word “ operation.’’ Repealed by 55 & 56 Yict. c. 19. As to suits pending when this Act comes into operation. Power to judges whose jurisdiction is determined 20 & 21 Yict. c. 85 (Matrimonial Causes Act, 1857) (a). An Act to amend the Law relating to Divorce and Matri- monial Causes in England. [28th August, 1857.] 1. [Commencement of Act.] 2. As soon as this Act shall come into operation, all jurisdic- tion now exerciseable 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 so exerciseable, except so far as relates to the grant- ing of marriage licences, which may be granted as if this Act had not been passed. 3. [The Court may enforce decrees or orders made before this Act comes into operation.] 4. All suits and proceedings in causes and matters matrimonial which at the time when this Act comes into operation shall be pending in any ecclesiastical court in England, shall be trans- ferred to, dealt with, and decided by the said Court for Divorce and Matrimonial Causes, as if the same had been originally instituted in the said Court. 5. Provided, that if at the time when this Act comes into operation, any cause or matter which would be transferred to the said Court for Divorce and Matrimonial Causes under the enact- ( а ) Short title, “Matrimonial Causes Act, 1857 ”; collective title, “Matrimonial Causes Acts, 1857 to 1878 ” (59 & 60 Viet. c. 14). (б) Short title, “ Statute Law Revision Act, 1892.” MATRIMONIAL CAUSES ACT, 1857 (20 & 21 VICT. C. 85). 693 ment hereinbefore contained shall have been heard before any judge having jurisdiction in relation to such cause or matter, and be then standing for judgment, such judge may at any time within six weeks after the time when this Act comes into opera- tion give in to one of the registrars attending the Court for Divorce and Matrimonial Causes a written judgment thereon signed by him; and a decree or order, as the case may require, shall be drawn up in pursuance of such judgment, and every such decree or order shall have the same force and effect as if it had been drawn up in pursuance of a judgment of the Court for Divorce and Matrimonial Causes on the day on which the same was delivered to the registrar, and shall be subject to appeal under this Act. 6. As soon as this Act shall come into operation, all jurisdic- tion now vested in or exerciseable by any ecclesiastical court or person in England in respect 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 matrimonial, except in respect of marriage licences, shall belong to and be vested in Her Majesty; and such jurisdiction, together with the jurisdiction conferred by this Act, shall be exercised 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 divorce 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.] 9. [Judge of the Court of Probate to be the judge ordinary.] 10. [Petitions for dissolution of marriage, &c. to be heard by three judges.] 11. [Acting judge during absence of the judge ordinary.] 12. The Court for Divorce and Matrimonial Causes shall hold its sittings at such place or places in London or Middlesex or elsewhere as Her Majesty in Council shall from time to time appoint. 13. The Lord Chancellor shall direct a seal to be made for the said Court, and may direct the same to be broken, altered, an4 renewed, at his discretion; and all decrees and orders, or copies to deliver written judgments. Repealed as far as the word “ ope- ration” by 55 & 56 Viet, c. 19. No decree for divorce a mensa et thoro to be made hereafter, but a judicial separation. ^Repealed by 55 & 56 Viet. c. 19. Ibid. Ibid. Ibid. Altered by 23 & 24 Viet, c. 145, s. 4. Seal of the Court. 694 APPENDIX B. — DIVORCE ACTS. Repealed by 42 & 43 Viet, c. 78 ( c ). Repealed by 55 & 56 Viet, c. 19. Sentence of judicial sepa- ration may be obtained by husband or wife for adultery, &c. Application for restitution of conjugal rights or judicial separation, may be made by husband or wife by petition to Court or to judges of assize. Wife deserted by her hus- band may apply to a police magistrate or justices in petty sessions for protection. of decrees or orders, of the said Court, sealed with the said seal, shall be received in evidence. 14. [Officers of the Court.] 15. [Power to advocates, barristers, &c. to practice in the Court.] 16. A sentence of judicial separation, (which shall have the effect of a divorce a mensa 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 the judges of assize , by Matrimonial Causes Act, 1858, s. 19], and the Court or judge to which such petition is addressed, on being satisfied 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 accordingly, 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 proceedings before judges of assize repealed by Mat. Causes Act , 1858, 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 justices in 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 husband or his creditors, or any person claiming under him; and such magistrates or justices or Court, if satisfied of the fact of such desertion, and that the same was without 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 creditors and persons claiming under him; and such earnings and property shall belong to the wife as if she were a feme sole: Provided always, that every such order, if made by a ( cj Supreme Court of Judicature (Officers) Act, 1879. MATRIMONIAL CAUSES ACT, 1857 (20 & 2L VICT. C. 85). 695 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 other 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 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 aforesaid: If any such order of protection be made, the wife shall during the con- tinuance thereof be and be deemed to have been, during such desertion of her, in the like position in all respects, with regard to property and contracts, and suing and being sued, as she would be under this Act if she obtained a decree of judicial separation. 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 prin- ciples and rules on which the ecclesiastical courts have heretofore acted and given relief, but subject to the provisions herein con- tained, 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 reasonable 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 accordingly; 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, contracts, 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 See Mat. C. Act, 1858, ss. 7, 8, 9, 10; 28 Viet. c. 44. Court to act on principles of the ecclesiastical courts. Decree of separation obtained during the absence of husband or wife may be reversed. See also Mat. C. Act, 1858, s. 8. Court may direct pay- ment of alimony to wife or to her trustee. 696 APPENDIX B. DIVORCE ACTS. In case of judicial separation the wife to be considered a feme sole with respect to property she may acquire, &c. By Mat. C. Act, 1858, s. 7. Also for purposes of contract and suing. On adultery of wife or incest, &c., of husband petition for dissolution of marriage may be presented. As to “in- cestuous adultery.” 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 husband had been then dead; provided, that if any such wife should again cohabit with her husband, all such property as she may be 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 separate. 26. In every case of a judicial separation the wife shall, whilst so separated, be considered as a feme sole for the purposes of con- tract, 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 during 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 dissolved, on the ground that since the celebration thereof her husband 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 desertion, 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 MATRIMONIAL CAUSES ACT, 1857 (20 & 21 VICT. C. 85 ). 697 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 consan- guinity 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 peti- tioner shall make the alleged adulterer a co-respondent to the petition, unless on special grounds, to be allowed by the Court, he shall be excused from so doing; and on every petition pre- sented 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 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. 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 reasonably can, not only as to the facts alleged, but also whether or no the petitioner has been in any manner accessory to or con- niving at the adultery, or has condoned the same, and shall also inquire into any counter-charge 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 mar- riage 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 dissolved: 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 unreason- Adulterer to be a co- respondent. May be dis- missed from suit, Mat. C. Act, 1858, s. 11. Cause may be tried by a jury if insisted on. Court to be satisfied of absence of collusion, &c. Dismissal of petition in certain cases. Power to Court to pronounce decree for dissolving marriage. Now only a decree nisi in the first instance. See Mat. C. Act, 1860, s. 7. 698 APPENDIX B. DIVORCE ACTS, Repealed by 7 Edw. 7, c. 12. Husband may claim damages from adulterer. Power to Court to order adul- terer to pay costs. Power to Court to make orders as to custody of children. See also Mat. C. Act, 1859, 8. 4. able 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. 32. [Maintenance.] 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 peti- tioner; 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 conversation 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 damages to be recovered on any such petition shall in all cases be ascertained 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. 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 educa- tion of the children, the marriage of whose parents is the subject of such suit or other proceeding, and may, if it shall think fit,. MATRIMONIAL CAUSES ACT, 1857 (20 & 21 VICT. C. 85). 099 direct proper proceedings to be taken for placing such children under the protection of the Court of Chancery. 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 determined 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 question as may now be made by any of the Superior Courts of Common 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 quali- fications, 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 liabilities, 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 returned, in like manner as in any cause tried in any of the said Superior Courts; and every such bill of exceptions, special verdict, and special case respectively shall be stated, settled, and sealed in like manner as in any cause tried in any of the said Superior Courts, and where the trial shall not have been had in the Court for Divorce and Matrimonial Causes, shall be re- turned 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 Questions of fact may be tried before the Court by a jury. Where a question is ordered to be tried a jury may be sum- moned as in the Common Law Courts. Rights to challenge. Such ques- tion to be reduced into writing, and a jury to be sworn to try it. Judge to have same powers as at Nisi Prius. Bfil of exceptions, special ver- dict, and special case. 700 APPENDIX B. DIVORCE ACTS. Court may- direct issues to try any fact. Affidavit in support of a petition. Service of petition. Examination of petitioner. Parties are now made witnesses for all purposes by Evidence Amendment Act, 1869 (32 & 33 Viet. c. 68). Adjournment. Court may order settlement of property for benefit of innocent party and children of marriage. See Mat. C. Act, 1859, s. 5, and Mat. C. Act, 1860, s. 6. Mode of 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 before 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 common jury, 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 verify- ing 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 de- ponent 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 dominions, in such manner as the Court shall by any general or special order 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 neces- sary 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-examined 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. 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 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. 46. Subject to such rules and regulations as may be estab- lished as herein provided, the witnesses in all proceedings before the Court where their attendance can be had, shall be sworn and examined orally in open Court: provided that parties, except MATRIMONIAL CAUSES ACT, 1857 (20 & 21 VICT. C. 85 ). 701 as hereinbefore provided, shall be at liberty to verify their re- spective 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-examined 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. [Court may issue commissions or give orders for examina- tion of witnesses who are abroad or unable to attend.] 48. [Rules of evidence in Common Law Courts to be observed.] 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 Ireland, as the case may be: [Provision as to witnesses affirming or declaring under Common Law Procedure Act, 1854 (17 & 18 Viet. c. 125).] 50. All persons wilfully deposing or affirming falsely in any proceeding before the Court shall be deemed to be guilty of perjury, and shall be liable to all the pains and penalties attached thereto. 51. [Costs.] 52. [Enforcement of orders and decrees.] 53. The Court shall make such rules and regulations concern- ing 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. [Pees to be regulated.] The said Court may make such rules and regulations as it may deem necessary and expedient for enabling persons to sue in the said Court in forma pauperis. 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 he final. 56. [Appeal to the House of Lords in case of petition for dis- solution of marriage.] taking evidence. Repealed by 55 & 56 Yict. c. 19 1 . Ibid. Attendance of witnesses on the Court. Repealed by 55 & 56 Viet, c. 19. Penalties for false evidence. Repealed by 55 & 56 Yict. c. 19. Ibid. Power to make rules, &c. for procedure and to alter them from time to time. Repealed by 55 & 56 Viet. c. 19. Suing in forma pauperis. The words “ whose decision shall be final,” repealed by 55 & 56 Viet, c. 19. Repealed by 31 & 32 Viet, c. 77, s. 2. 702 APPENDIX B. DIVORCE ACTS. Liberty to parties to marry again. See Mat. C. Act, 1868, s. 4. No clergyman compelled to solemnize certain marriages. If minister of any church, &c., refuses to perform marriage ceremony, any other minister may perform such service. Repealed by 55 & 56 Yict. c. 19. Ibid. Ibid. Repealed by 55 & 56 Yict. c. 19 ; also by 42 & 43 Viet, c. 78. Repealed by 55 & 56 Viet. c. 19. Ibid. Ibid. Power to Secretary of State to order all letters patent, records, &c., to be transmitted from all Ecclesiastical •Courts. 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 refus- ing to solemnize the marriage of any such person. 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 per- formed in such church or chapel, such minister shall permit any other minister in holy orders of the said united church, entitled to officiate within the diocese in which such church or chapel is situate, to perform such marriage service in such church or chapel. 59. [No action in England for criminal conversation.] 60. [All fees, except as herein provided, to be collected by stamps, &c.] 61. [Provisions of 20 & 21 Viet. c. 77, concerning stamps for the Court of Probate to be applicable to the purposes of this Act.] 62. [Expenses of the Court to be paid out of monies to be provided by Parliament.] 63. [Annual certificates of proctors, &c.] 64. [Compensation to proctors.] 65. [Salary of judge of Court of Probate.] 66. Any one of Her Majesty’s Principal Secretaries of State may order every judge, registrar, or other officer of any Ecclesi- astical Court in England or the Isle of Man, or any other person having the public custody of or control over any letters patent, records, deeds, processes, acts, proceedings, books, documents or other instrument relating to marriages, or to suits for divorce, nullity of marriage, restitution of conjugal rights, or to any other matters or causes matrimonial, except marriage licences, to trans- mit the same, at such times and in such manner, to such places MATRIMONIAL CAUSES ACT, 1857 (20 & 21 VICT. C. 85 ). 703 in London or Westminster, and under such regulations as the said Secretary of State may appoint; and if any judge, registrar, officer, or other person shall wilfully disobey such order, he shall for the first offence forfeit the sum of one hundred pounds, to be recoverable by any registrar of the Court of Probate as a debt under this Act in any of the Superior Courts at Westminster, and for the second and subsequent offences the Judge Ordinary may commit the person so offending to prison for any period not ex- ceeding three calendar months, provided that the warrant of committal be countersigned by one of Her Majesty’s Principal Secretaries of State, and the said persons so offending shall forfeit all claim to compensation under this Act. 67. All rules and regulations concerning practice or procedure, 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, &c., to be laid before Parliament.] 21 & 22 Vict. c. 108 (Matrimonial Causes Act, 1858 ) ( c ). An Act to amend the Act of the Twentieth and Twenty- first Victoria, chapter Eighty-five. [2nd August, 1858.] 1. [Judge Ordinary of the Divorce Court may sit in chambers.] 2. [Treasury to cause chambers to be provided.] 3. [Powers of judge when sitting in chambers.] 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 Matri- monial Causes the same power and authority which surrogates of the official 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 proceedings in that Court. (c) Short title, “ Matrimonial Causes Act, 1858 ” ; collective title, “ Matrimonial Causes Acts, 1857 to 1878 ” (59 & 60 Vict. c. 14). Penalty on disobeying such order. Rules, &c., to be laid before Parliament. Words “ or fixing or regu- lating fees,” repealed by 55 & 56 Vict. c. 19. Repealed by 42 & 43 Vict. c. 78. Repealed 55 & 56 Yict. c. 19. Ibid. Ibid. The regis- trars to do all acts heretofore done by surrogates. 70-1 APPENDIX B. DIVORCE ACTS. This section is now of little practical value, unless possibly in a petition under the Legitimacy Declaration Act, 1858. Wives deserted by their hus- bands may apply to the judge for an order to pro- tect property, &c., acquired by them. Provisions respecting property of wife to extend to property vested in her as executrix, &c. Order for protection of earnings, &c. of wife to be deemed valid, until reversed, &c. 5. In every cause in which a sentence of divorce and separa- tion from bed, board, and mutual cohabitation has been given by a competent Ecclesiastical Court before the Act of the twentieth and twenty-first Victoria, chapter eighty-five, came into operation, the evidence in the case in which such sentence was pronounced in such Ecclesiastical Court may, whenever from the death of a witness or from any other cause it may appear to the Court reasonable and proper, be received on the hearing of any petition which may be presented to: the said Court for Divorce and Matrimonial Causes. 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 pro- perty in England she may have acquired or may acquire by her own 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 for Divorce and Matrimonial Causes under the twentieth and twenty-first Victoria, 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 the making such order or decree, MATRIMONIAL CAUSES ACT, 1858 (21 & 22 VICT. C. 108). 705 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 com- menced. 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 of the wife from her husband may have ceased, or at some time since the making of the order or decree been discontinued, be protected 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 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 adulterer is made a co-respondent, or in which, on the petition of a wife, the person with whom the husband is alleged to have committed 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. [Persons who administer oaths under 20 & 21 Viet. c. 77, to administer under 20 & 21 Viet. c. 85.] 13. The bill of any proctor, attorney, or solicitor, for any fees, charges, or disbursements in respect of any business transacted in the Court for Divorce and Matrimonial Causes, and whether D.M.C. 45 Order to state the time at which the desertion commenced. Indemnity to persons, &c., making payments under orders afterwards reversed. Where alleged adul- terer a co- respondent, Court may order him to be dismissed from the suit. Repealed by 55 & 56 Yict. c. 19. Bills of proctors, attornies, &c., to be subject to taxation. 706 APPENDIX B. DIVORCE ACTS. Power to enforce decree as to costs. Judge to have authority- over proctors, &c. Repealed by 55 & 56 Viet. c. 19. Ibid. So much of Mat. C. Act, 1857, as to applications to judges of assize repealed. the same was transacted before the full Court or before the Judge Ordinary, shall, as well between proctor or attorney, or solicitor and client, as between party and party, be subject to taxation by any one of the registrars belonging to the principal registry of the Court of Probate; and the mode in which any such bill shall be referred for taxation, and by whom the costs of the taxation shall be paid, shall be regulated by the rules and orders to be made under the Act of the twentieth and twenty- first of Victoria, chapter eighty-five; and the certificate of the registrar of the amount at which such bill is taxed shall be subject to appeal to the judge of the said Court. 14. The Judge Ordinary of the Court for Divorce and Matri- monial Causes, and the registrars of the principal registry of the Court of Probate, shall respectively, in any case where an Ecclesi- astical Court having matrimonial jurisdiction had, previously to the commencement of the Act of the twentieth and twenty- first Victoria, chapter eighty-five, made any order or decree in respect of costs, have the same power of taxing such costs, and enforcing payment thereof, or of otherwise carrying such order or decree into effect, as if the cause wherein such decree was made had been originally commenced and prosecuted in the said Court for Divorce and Matrimonial Causes: Provided, that in taxing any such costs, or any other costs incurred in causes depending in any Ecclesiastical Court previously to the commencement of the said recited Act, all fees, charges, and expenses shall be allowed which might have been legally made, charged and enforced according to the practice of the Court of Arches. 15. The Judge Ordinary of the Court for Divorce and Matri- monial Causes shall have and exercise, over proctors, solicitors, and attornies practising in the said Court, the like authority and control as is now exercised by the judges of any Court of equity or of common law over persons practising therein as proctors, solicitors, or attornies. 16. [Commissioners may be appointed in the Isle of Man, &c., to administer oaths.] 17. {Repealed by Matrimonial Causes Act, 1868, s. 2.] 18. [Judge Ordinary may grant rule nisi for new trial, &c.] 19. So much of the Act of the twentieth and twenty- first Victoria, chapter eighty- five, as authorizes application to be made for restitution of conjugal rights, or for judicial separation by petition to any judge of assize, and as relates to the proceedings on such petition, shall be and the same is hereby repealed. MATRIMONIAL CAUSES ACT, 1859 (22 & 23 VICT. C. 61 ). 707 20. [Affidavits before whom to be sworn when parties making them reside in foreign parts.] 21. [Affidavits before whom to be sworn in Her Majesty’s dominions out of England.] 22. [Persons forging seals or signatures, &c., guilty of felony.] 23. [Persons taking a false oath before a surrogate, &c., guilty of perjury.] Repealed by 52 Viet. c. 10. Ibid. Ibid. Ibid. 22 & 23 Vict. c. 61 (Matrimonial Causes Act, 1859 ) ( d ). An Act to make further provision concerning the Court for Divorce and Matrimonial Causes. [13th August, 1859.] 1. [Judges of the Queen’s Bench, &c., to be judges of the Court.] 2. [Repealed by 23 & 24 Vict. c. 144, s. 4, and 55 & 56 Vict. c. 19.] 3. [Precedence of the Judge Ordinary.] 4. The Court, after a final decree of judicial separation, nullity of marriage, or dissolution of marriage, may upon application (by petition) for this purpose make, from time to time, all such orders and provision with 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. 5. The Court, after a final decree of nullity of marriage or dis- solution of marriage, may inquire 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 marriage or of their respective parents as to the Court shall seem fit. ( d ) Short title, “The Matrimonial Causes Act, 1859 ”; collective title, “The Matrimonial Causes Acts, 1857 to 1878,” given by 59 & 60 Vict. c. 14. 45 ( 2 ) Repealed by 55 & 56 Vict. c. 19. Ibid. The Court may make orders as to custody, &c. of children after a final decree of separation, &c. Mat. C. Act, 1857, s. 35. As to mar- riage settle- ments of parties after final decree of nullity of marriage. See now Mat. C. Act, 1878. 708 APPENDIX B. DIVORCE ACTS. See Evidence Amendment Act, 1869 (32 & 33 Viet, c. 68). Repealed 55 & 56 Viet, c. 19. Repealed by 55 & 56 Viet, c. 19. Ibid. Ibid. Court may, where one party only appears, require counsel to be appointed to argue on the other side. Repealed as far as the words “ fur- ther enacted that,” 55 & 56 Viet. c. 19, 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 com- petent and compellable to give evidence of or relating to such cruelty or desertion. 7. [Extension of right to appeal to House of Lords.] 23 & 24 Vict. c. 144 (Matrimonial Causes Act, 1860) (e). An Act to amend the Procedure and Powers of the Court for Divorce and Matrimonial Causes. [28th August, I860.] 1. [Judge Ordinary may exercise powers now vested in the full Court, and may call in the assistance of one other judge.] 2. [Judge Ordinary may direct any matter to be heard by the full Court. Appeal to full Court.] 3. [ Repealed by the Matrimonial Causes Act, 1868, s. 2.] 4. [Sittings of the full Court.] 5. In every case of a petition for a dissolution of marriage it shall be lawful for the Court, if it shall see fit, to direct all necessary papers in the matter to be sent to Her Majesty’s proctor, who shall, under the directions of the Attorney-General, instruct counsel to argue before the Court any question in relation to such matter, and which the Court may deem it necessary or expedient to have fully argued; and Her Majesty’s proctor shall be entitled to charge and be reimbursed the costs of such proceeding as part of the expense of his office. 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 eighiy-five, it was enacted that “ In any case in which the Court should 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 (e) Short title, “ The Matrimonial Causes Act, 1860 ”; collective title, “The Matrimonial Causes Acts, 1857 to 1878,” 59 & 60 Vict. c. 14. MATRIMONIAL CAUSES ACT, I860 (23 & 24 VICT. C. 144). 709 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; and during that period any person shall be at liberty, in such manner 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 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 require; 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 there- upon take such steps as the Attorney-General may deem neces- sary or expedient; and if from any such information or other- wise the said Proctor shall suspect that any parties to the suit are or have been acting in collusion for the purpose 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 witnesses, 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. Instruments executed pursuant to orders under recited enactment to be valid notwith- standing coverture. Decrees. Collusion. Extended to suits for nullity by Mat. C. Act, 1873, s. 1. (/) Now six months; see Matrimonial Causes Act, 1866, s. 3. 710 APPENDIX B. DIVORCE ACTS. Continuance 8. This Act shall continue in force until the thirty-first day of of Act. July, one thousand eight hundred and sixty- two, and no longer. This section is repealed, and the above statute made perpetual by 25 & 26 Viet. c. 81, a statute passed solely for that purpose, and consisting of a single section. 27 & 28 Vict. c. 44. An Act to amend the Act relating to Divorce and Matri- monial Causes in England, Twentieth and Twenty- first Victoria , Chapter Eighty- five (g) . [14th July, 1864.] 1. Where under the provisions of section twenty-one 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 for 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 become incapable of acting, then in every such case the husband or creditor, or such other person as aforesaid, may apply to the magistrate for the time being acting as the successor or in the place of the magis- trate who made the order of protection, for the 'discharge of it, who shall have authority to make an order discharging 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. (< 7 ) Short title, “ The Matrimonial Causes Act, 1866 ” ; collective title, “The Matrimonial Causes Acts, 1857 to 1878,” 59 & 60 Vict. e. 14. Amending provisions of Mat. C. Act, 1857, s. 21 , as to discharge of orders for protection of property of wives deserted by their husbands. MATRIMONIAL CAUSES ACT, 1866 (29 & 30 VICT. C. 32 ). 711 29 & 30 Vict. c. 32 (Matrimonial Causes Act, 1866 ) (h). An Act further to 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 in the twentieth and twenty-first years of the reign of Her present Majesty, intituled “ 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 pro- nouncing any decree for a dissolution of marriage, order that the husband shall to the satisfaction 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 con- veyancing 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 for a 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: 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. [Power to order monthly or weekly payments to wife from husband on dissolution of marriage.] 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 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. ( [h ) Short title, “ The Matrimonial Causes Act, 1866 ” ; collective title, “ The Matrimonial Causes Acts, 1857 to 1878,” 59 & 60 Vict. c. 14. Mat. C. Act, 1857, s. 32. Repealed by 7 Edw. 7, c. 12. Relief to respondent. Decree nisi not absolute till after six months. Extended to decrees for nullity by Mat. C. Act, 1873, s. 1. APPENDIX B. — DIVORCE ACTS. 712 31 & 32 Vict. c. 77 (Matrimonial Causes Act, 1868 ) (£). 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 for 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 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: Interpreta- 1. Throughout this Act the expression “ the Court ” shall mean tl0n ’ the Court for Divorce and Matrimonial Causes. Sect. 56 of 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 there- from 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 dissolution 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 fifty-seven of the said Act of twenty-first Victoria, chapter eighty-five, 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 ±00 i y SCUt. J of Mat. C. Act, 1858, and sect. 3 of Mat. C. Act, 1860, repealed. Appeals to House of Lords to be within one month. No appeal in undefended suits for dissolution unless by leave of Court. Liberty to parties to marry again. Mat. C. Act, 1857, s. 57. (£) Short title, “The Divorce Amendment Act, 1868 ”; collective title, “The Matrimonial Causes Acts, 1857 to 1878,” 59 & 60 Vict. c. 14. 713 MATRIMONIAL CAUSES ACT, 1873 (36 & 37 VICT. C. 3l). respectively shall be at liberty to marry at any time after the pronouncing of the decree absolute. 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. 36 & 37 Vict. c. 31 (Matrimonial Causes Act, 1873) (k). An Act to extend to suits for Nullity of Marriage the Law with respect to the Intervention of Her Majesty's Proctor and others in Suits in England for dissolving Marriages. [16th June, 1873.] [Preamble.] 1. The above-mentioned sections of the said Act shall extend to decrees and suits for nullity of marriage in like manner as they apply to decrees and suits for divorce, and shall be construed as if they were herein enacted, with the substitution of the words “ a decree for nullity of marriage ” for the words “ decree for a divorce ” or “ divorce,” as the case may require. 2. This Act, together with the Acts specified in the schedule to this Act may he cited as “ The Matrimonial Causes Acts, 1857 to 1873,” and each Act may be cited as the Matrimonial Causes Act, of the year in which it was passed. SCHEDULE. Matrimonial Causes Acts. ( [k ) Short title, “The Matrimonial Causes Act, 1873 ”; collective title, “ The Matrimonial Causes Acts, 1857 to 1878,” 59 & 60 Vict. c. 14. Short title. Qualified retrospective operation. Repealed by 56 & 57 Yict. c. 54. Extension of sect. 7 of Mat. C. Act, 1860, and sect. 3 of Mat. C. Act, 1866, to suits for nullity of marriage. Short title. The words “ together with” to ‘ ‘ and each Act ” repealed by 56 & 57 Vict. c. 54. Repealed by 56 & 57 Vict. c. 54. 714 APPENDIX B. DIVORCE ACTS. Short title. Costs of intervention. Extension of power given by Mat. C. Act, 1859. Repealed by 58 & 59 Viet, c. 39. 41 & 42 Vict. c. 19 (Matrimonial Causes Act, 1878 ) (/). An Act to amend the Matrimonial Cause, s Acts. [27th May, 1878.] Be it 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. This Act may be cited as the Matrimonial Causes Act, 1878. 2. Where the Queen’s proctor or any other person shall inter- vene or show cause against a decree nisi in any suit or proceeding for divorce or for nullity of marriage, the Court may make such order as to the costs of the Queen’s proctor, or of any other person who shall intervene or show cause as aforesaid, or of all and every party or parties thereto, occasioned by such intervention or showing cause as aforesaid, as may seem just; and the Queen’s proctor, any other person as aforesaid, and such party or parties shall be entitled to recover such costs in like manner as in other cases : Provided that the Treasury may, if it shall think fit, order any costs which the Queen’s proctor shall, by any order of the Court made under this section, pay to the said party or parties, to be deemed to be part of the expenses of his office. 3. The Court may exercise the powers vested in it by the provisions of section five of the Act of the twenty-second and twenty-third years of Victoria, chapter sixty-one, notwithstand- ing that there are no children of the marriage. 4. [If husband convicted of aggravated assualt, the Court may order that wife be not bound to cohabit, &c.] 47 & 48 Vict. c. 68 (Matrimonial Causes Act, 1884 ). An Act to amend the Matrimonial Causes Acts. [14th August, 1884.] See ante, Chap. IV., pp. 84 — 86. (Z) Short title, “The Matrimonial Causes Act, 1878 ”; collective title, “The Matrimonial Causes Acts, 1857 to 1878,” 59 & 60 Vict. c. 14. MATRIMONIAL CAUSES ACT, 1907 (7 EDW. 7, C. 12). / 10 Power to grant main- tenance and 7 Euw. 7, c. 12 (Matrimonial Causes Act, 1907). An Act to amend the Matrimonial Causes Acts, 1857 and 1866, by extending the Cowers of the Court in relation to Maintenance and Alimony, and leave to intervene. [9tli August, 1907.] Be it enacted by the King’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. — (1) The court may, if it thinks fit, on any decree for dis- solution or nullity of marriage, order that the husband shall, to the satisfaction of the court, secure to his wife such gross sum alimony, of money or such annual sum of money for any term not exceed- ing her life as, having regard to her fortune, (if any), to the ability of the husband, and to the conduct of the parties, it may deem reasonable, and for that purpose may refer the matter to any one of the conveyancing counsel of the court to settle and approve of a proper deed or instrument to be executed by all necessary parties, and the court may, if it thinks fit, suspend the pronouncing of its decree until such deed shall have been duly executed. (2) In any such case the court may, if it thinks fit, make an order on the husband for payment to the wife during their joint lives of such monthly or weekly sum for her maintenance and support as the court may think reasonable, and any such order may be made either in addition to or instead of an order under the last preceding subsection. Provided that — (a) If the husband afterwards from any cause becomes unable to make such payments it shall be lawful for the court to discharge or modify the order or tem- porarily suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the order wholly or in part as the court may think fit; and (b) Where the court has made any such order as is men- tioned in this sub-section, and the court is satisfied that the means of the husband have increased, the court may, if it thinks fit, increase the amount pay- able under the order. 716 APPENDIX B. DIVORCE ACTS. Repeal of sect. 32 of 20 & 21 Viet, c. 85, and sect. 1 of 29 & 30 Viet, c. 32. Power to allow intervention on terms. Short title. (3) Upon any petition for dissolution or nullity 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 has in a suit instituted for judicial separation. 2. Section thirty-two of the Matrimonial Causes Act, 1857, and section one of the Matrimonial Causes Act, 1866, are hereby repealed. 3. In every case, not already provided for by law, in which any person is charged with adultery with any party to a suit, or in which the court may consider, in the interest of any person not already a party to the suit, that such person should be made a party to the suit, the court may, if it thinks fit, allow that person to intervene upon such terms (if any) as the court may think just. 4. This Act may be cited as the Matrimonial Causes Act, 1907, and may be cited with the Matrimonial Causes Acts, 1857 to 1878. 717 APPENDIX C. STATUTES MISCELLANEOUS. 8 & 9 Vict. c. 113, s. 1. An Act to facilitate the Admission in Evidence of certain official and other Documents. [8th August, 1845.] Whereas it is provided by many statutes that various certifi- cates, official and public documents, documents and proceedings of corporations and of joint stock and other companies, and certified copies of documents, bye laws, entries in registers and other books, shall be receivable in evidence of certain particulars in courts of justice, provided they be respectively authenticated in the manner prescribed by such statutes: And whereas the beneficial effect of these provisions has been found by experience to be greatly diminished by the difficulty of proving that the said documents are genuine; and it is expedient to facilitate the admission in evidence of such and the like documents: 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, that whenever by any Act now in force or hereafter to be in force any certificate, official or public docu- ment, or document or proceeding of any corporation or joint stock or other company, or any certified copy of any document, bye law, entry in any register or other book, or of any other proceeding, shall be receivable in evidence of any particular in any court of justice, or before any legal tribunal, or either House of Parliament, or any committee of either House, or in any judicial proceeding, the same shall respectively be admitted in evidence, provided they respectively purport to be sealed or impressed with a stamp, or sealed and signed, or signed alone, as required, or impressed with a stamp and signed, as directed by the respective Acts made or to be hereafter made, without any proof of the seal or stamp, where a seal or stamp is necessary, or of the signature or of the official character of the person appear- ing to have signed the same, and without any further proof thereof in every case in which the original record could have been received in evidence. Certain documents to be received in evidence without proof of seal or signature, &c. of person signing the same. 718 APPENDIX C. — MARRIAGES IN INDIA. Marriage of Chrifstians in India may be solemnized under this Act. Notice of intended marriage to be given to the marriage registrar for the district. Certificates of marriages to be transmitted periodically to the secretary of the Govern- ment, &c. Marriages may continue to be solemnized as heretofore. 14 & 15 Vict. c. 40, ss. 1, 12, 21 and 22. An Act for Marriages in India. [24th July, 1851.] I. In every case of marriage intended to be solemnized in India after the commencement of this Act, where one or both of the parties is or are a person or persons professing the Christian religion, such marriage may be solemnized under the provisions of this Act: and where such marriage is intended to be so solemnized, one of the parties shall give notice in writing to the marriage registrar to be appointed under the provisions of this Act for the district within which the parties shall have dwelt for such period then next preceding as by such laws or regulations as herein-after mentioned may be required, or, if the parties dwell in the districts of different marriage registrars shall give the like notice to the marriage registrar for each district; and every such notice shall be in such form and contain such parti- culars as may be prescribed by such laws or regulations, and shall be open for inspection and published as by such laws or regulations may be provided. XII. The marriage registrar shall forthwith separate the certi- ficate from the marriage register book, and transmit it, at the end of every month, to the secretary to the government of the presidency or place within which he resides, or to such other officer as may for this purpose be appointed under the laws or regulations herein-after mentioned; and if no marriage have been registered during such month, the marriage registrar shall certify such fact under his hand, and such certificate shall be transmitted as aforesaid; and the marriage registrar shall keep safely the said register book until it be filled, and shall then trans- mit the same to the secretary to the government, or to such other officer as aforesaid, to be kept by him with the records of his office; provided that with regard to those marriages so certified, of which it may appear to the governor general in council desir- able that evidence should be transmitted to England, the secretary to the government, or such other officer as aforesaid, shall, at the end of every three calendar months in each year, send all the certificates of marriage sent to him as aforesaid during such three months, signed by him to the secretary of the East India Company, for the purpose of being delivered to the registrar general of births, deaths, and marriages in England. XXI. Nothing herein contained shall invalidate or affect any marriage which may be solemnized in India by persons in holy orders, or any marriages which may be solemnized under the 14 & 15 vict. c. 40. 719 provisions of the Act of the fifty-eighth year of King George the Third, chapter eighty- four, or any other marriages which under the laws for the time being in force in India might have been there solemnized in case this Act had not been passed: provided that it shall be lawful for the governor general of India in council, from time to time by laws and regulations to be made as aforesaid, to provide for the registration of any marriages solemnized in India by persons in holy orders, or of any marriages there solemnized under the provisions of the said Act of the fifty-eighth year of King George the Third, chapter eighty-four, or of any other marriages there solemnized, of which it may appear to the said, governor general in council desirable that evidence should be transmitted to England, and to provide for the care and custody of the registers of such marriages, and for the transmission of certificates thereof to the secretaries of the governments of the respective presidencies, or to other officers, and for their sending the same to the secretary of the East India Company, for the purpose of being delivered to the registrar general of births, deaths, and marriages in England, and also to provide for the authentication of such certificates. XXII. The certificates which shall be delivered to the re- gistrar general of births, deaths, and marriages in England, under this Act, or under any laws or regulations to be made thereunder, shall be kept in the general register office, in the same manner, and indexes thereof shall be made and searches permitted, and copies thereof, sealed or stamped with the seal of the general register office, shall be given, in the like manner as by the Act of the session holden in the sixth and seventh years of King William the Fourth, chapter eighty-six, is provided con- cerning the certified copies (kept in such office under the said Act) of the registers of births, deaths, and marriages in England; and every certified copy, purporting to be sealed or stamped with the seal of the said general register office, of any such certificate delivered to the said registrar general under this Act, or under such laws or regulations, shall be received as evidence of the marriage to which the same relates, without further proof of such certificate, or of any entry therein. Power to governor general in council to make laws for the registration of marriages not solem- nized under this Act. Certificates delivered to registrar general under this Act, or under any laws or regulations made there- under, to be subject to the provisions of 6 & 7 Will. 4, c. 86. 720 APPENDIX C. EVIDENCE ACTS. Examined or certified copies of documents admissible in evidence. Extracts of entries to be admissible as evidence. Repealed by 56 & 57 Viet. c. 54. 14 & 15 Vict. c. 99, s. 14. An Act to amend the Law of Evidence. [7th August, 1851 .] XIV. Whenever any book or other document is of such a public nature as to be admissible in evidence on its mere pro- duction from the proper custody, and no statute exists which renders its contents provable by means of a copy, any copy thereof or extract therefrom shall be admissible in evidence in any court of justice, or before any person now or hereafter having by law or by consent of parties authority to hear, receive, and examine evidence, provided it be proved to be an examined copy or extract, or provided it purport to be signed and certified as a true copy or extract by the officer to whose custody the original is intrusted, and which officer is hereby required to furnish such certified copy or extract to any person applying at a reasonable time for the same, upon payment of a reasonable sum for the same, not exceeding fourpence for every folio of ninety words. 17 & 18 Vict. c. 80, s. 58. An Act to provide for the better Registration of Births , Deaths, and Marriages in Scotland. [7th August, 1854.] LVIII. Every extract of any entry in the register books to be kept under the provisions of this Act, duly authenticated and signed by the registrar general, if such extract shall be from the registers kept at the general registry office, and by the registrar if from any parochial or district register, shall be admissible as evidence in all parts of her Majesty’s dominions, without any other or further proof of such entry. 32 & 33 Vict. c. 68 (Evidence Further Amendment Act, 1869) (a). An Act for the further Amendment of the Law of Evidence. [9th August, 1869.] [Preamble.] (a) Collective title, “The Evidence Acts, 1806 to 1895,” 59 & 60 Vict. c. 14. 42 & 43 yict. c. 11. 721 1. [Sect. 4 of 14 & 15 Yict. c. 16 & 17 Yict. c. 83, repealed.] 99, and part of sect. 2 of Repealed by*46 & 47 Viet. c. 39. 2. The parties to any action for breach of promise of marriage Parties in shall be competent to give evidence in such action : Provided j^tio^s always, that no plaintiff in any action for breach of promise of promise of marriage shall recover a verdict unless his or her testimony shall marriage, be corroborated by some other material evidence in support of such promise. 3. The parties to any proceeding instituted in consequence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in such proceeding: Provided that no witness in any proceeding, whether a party to the suit or not, shall be liable to be asked or bound to answer any question tend- ing to show that he or she has been guilty of adultery, unless such witness shall have already given evidence in the same proceeding in disproof of his or her alleged adultery. Parties and their hus- bands and wives to be witnesses in suits for adultery. 4. [Persons objecting to take oath may be allowed to make Repealed by declaration, and be triable for perjury.] ^ 52 5. This Act may be cited for all purposes as the “Evidence Short title. Further Amendment Act, 1869.” 6. This Act shall not extend to Scotland. Extent of Act. 42 & 43 Yict. c. 11 (Bankers’ Books Evidence Act, 1879). An Act to amend the Law of Evidence with respect to Bankers' Books. [23rd May, 1879.] Be it 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. This Act may be cited as the Bankers’ Books Evidence Act, Short title. 1879. 2. [Repeal of 39 & 40 Viet. c. 48.] Repealed by L * J 57 & 58 Viet. 3. Subject to the provisions of this Act, a copy of any entry in c. 56. a banker’s book shall in all legal proceedings be received as Mode of proof prima facie evidence of such entry, and of the matters, trans- linkers 6 ’ 8 * n actions, and accounts therein recorded. books. D.M.C. 46 722 APPENDIX C. EVIDENCE ACTS. Proof that book is a banker’s book. Verification of copy. Case in which banker, &c., not com- pellable to produce book, &c. Court or judge may order inspec- tion, &c. Costs. Interpre- tation of “ bank,” “ banker,” and “ bank- ers’ books.” 4. A copy of an entry in a banker’s book shall not be received in evidence under this Act unless it be first proved that the book was at the time of the making of the entry one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody or control of the bank. Such proof may be given by a partner or officer of the bank, and may be given orally or by an affidavit sworn before any com- missioner or person authorised to take affidavits. 5. A copy of an entry in a banker’s book shall not be received in evidence under this Act unless it be further proved that the copy has been examined with the original entry and is correct. Such proof shall be given by some person who has examined the copy with the original entry, and may be given either orally or by an affidavit sworn before any commissioner or person autho- rised to take affidavits. 6. A banker or officer of a bank shall not, in any legal pro- ceeding to which the bank is not a party, be compellable to pro- duce any bankers’ book the contents of which can be proved under this Act, or to appear as a witness to prove the matters, transactions, and accounts therein recorded, unless by order of a judge made for special cause. 7. On the application of any party to a legal proceeding a Court or judge may order that such party be at liberty to inspect and take copies of any entries in a banker’s book for any of the purposes of such proceedings. An order under this section may be made either with or without summoning the bank or any other party, and shall be served on the bank three clear days before the same is to be obeyed, unless the Court or judge other- wise directs. 8. The costs of any application to a Court or judge under or for the purposes of this Act, and the costs of anything done or to be done under an order of a Court or judge made under or for the purposes of this Act shall be in the discretion of the Court or judge, who may order the same or any part thereof to be paid to any party by the bank, where the same have been occasioned by any default or delay on the part of the bank. Any such order against a bank may be enforced as if the bank was a party to the proceedings. 9. In this Act the expressions “ bank ” and “ banker ” mean any person, persons, partnership, or company carrying on the business of bankers and having duly made a return to the Com- missioners of Inland Revenue, and also any savings bank certified 42 & 43 vict. c. 11. 723 under the Acts relating to savings banks, and also any post office savings bank. The fact of any such bank having duly made a return to the Commissioners of Inland Revenue may be proved in any legal proceeding by production of a copy of its return verified by the affidavit of a partner or officer of the bank, or by the production of a copy of a newspaper purporting to contain a copy of such return published by the Commissioners of Inland Revenue; the fact that any such savings bank is certified under the Acts relat- ing to savings banks may be proved by an office or examined copy of its certificate; the fact that any such bank is a post office savings bank may be proved by a certificate purporting to be under the hands of Her Majesty’s Postmaster-General or one of the secretaries of the Post Office.. Expressions in this Act relating to “ bankers’ books ” include ledgers, day books, cash books, account books, and all other books used in the ordinary business of the bank. 10. In this Act — Interpre- The expression “ legal proceeding ” means any civil or criminal proceeding or inquiry in which evidence is or may proceeding/’ be given, and includes an arbitration; “ court,” The expression “ the Court ” means the Court, judge, arbi- judge, trator, persons, or person before whom a legal proceeding is held or taken ; The expression “ a Judge ” means with respect to England a Judge of the High Court of Justice, and with respect to Scotland a lord ordinary of the Outer House of the Court of Session, and with respect to Ireland a J udge of the High Court of Justice in Ireland; The judge of a county court may with respect to any action in such Court exercise the powers of a judge under this Act. 11. Sunday, Christmas Hay, Good Friday, and any bank holi- Computation day shall be excluded from the computation of time under this ^ me - Act. 51 & 52 Vict. c. 46 (Oaths Act, 1888). An Act to amend the Law as to Oaths. [24th December, 1888.] Be it enacted by the Queen’s most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, 46 (2) 724 APPENDIX C. — OATHS ACT. When affirmation may be made instead of oath. Form of affirmation. Validity of oath not affected by absence of religious belief. Form of affirmation in writing. Swearing with uplifted hand. Repeal. Short title. and commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. Every person upon objecting to being sworn, and stating, as the ground of such objection, either that he has no religious belief, or that the taking of an oath is contrary to his religious belief, shall be permitted to make his solemn affirmation instead of taking an oath in all places and for all purposes where an oath is or shall be required by law, which affirmation shall be of the same force and effect as if he had taken the oath; and if any person making such affirmation shall wilfully, falsely, and cor- ruptly affirm any matter or thing which, if deposed on oath, would have amounted to wilful and corrupt perjury, he shall be liable to prosecution, indictment, sentence, and punishment in all respects as if he had committed wilful and corrupt perjury. 2. Every such affirmation shall be as follows: “ I, A. B., do solemnly, sincerely, and truly declare and affirm,” and then proceed with the words of the oath prescribed by law, omitting any words of imprecation or calling to witness. 3. Where an oath has been duly administered and taken, the fact that the person to whom the same was administered had, at the time of taking such oath, no religious belief, shall not for any purpose affect the validity of such oath. 4. Every affirmation in writing shall commence “ I, , of , do solemnly and sincerely affirm,” and the form in lieu of jurat, shall be “ Affirmed at , this day of , 18 . Before me.” 5. If any person to whom an oath is administered desires to swear with uplifted hand, in the form and manner in which an oath is usually administered in Scotland, he shall be permitted to do so, and the oath shall be administered to him in such form and manner without further question. 6. The Acts mentioned in the schedule to this Act are hereby repealed to the extent in the third column of the schedule mentioned. 7. This Act may be cited as the Oaths Act, 1888. [Schedule 42 & 43 vict. c. 8, 725 SCHEDULE. Session and Chapter. Title. Extent of Repeal. 17 & 18 Vict. c. 125.. The Common Law Proce- dure Act, 1854. Section twenty. 19 & 20 Vict. c. 102.. The Common Law Proce- dure Amendment Act (Ireland), 1856. Sections twenty- three and twenty - four. 24 & ’25 Vict. c. 66 . . An Act to give relief to per- sons who may refuse or be unwilling, from alleged conscientious motives, to be sworn in criminal pro- ceedings. The entire Act. 28 & 29 Vict. c. 9. . . . The Affirmation (Scotland) , Act, 1865. The entire Act. 30 & 31 Vict. c. 35 An Act to remove some de- fects in the administra- tion of the Criminal Law. Section eight. 31 & 32 Vict. c. 39 The J urors Affirmation (Scotland) Act, 1868. The entire Act. 31 & 32 Vict. c. 75 The Juries Act (Ireland), 1868. Section three. 32 & 33 Vict. o. 68 The Evidence Further Amendment Act, 1869. Section four. 33 & 34 Vict. c. 49 . . The Evidence Amendment Act, 1870. The entire Act. [.42 & 43 Vict. c. 8 (Registration of Births, Deaths, and Marriages (Army) Act, 1879). An Act to make further provision for the Registration of Deaths, Marriages, and Births occurring out of the United Kingdom among officers and soldiers of Her Majesty's Forces, and their families. [23rd May, 1879.] Be it enacted by the Queen’s most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, 726 APPENDIX C. — REGISTRATION ACT. Short title. Transmission to registrar of registers of births, deaths, and marriages of army kept in pursuance of Her Majesty’: regulations. Provision as to existing documents evidencing deaths, marriages, and births among officers and soldiers of the army and their families. and commons, in this present Parliament assembled, and by the- authority of the same, as follows: 1 . This Act may be cited as the Registration of Births, Deaths, and Marriages (Army) Act, 1879. 2 . If Her Majesty is pleased from time to time to make regula- tions respecting the registration of deaths and births occurring and marriages solemnized out of the United Kingdom among officers and soldiers of Her Majesty’s land forces and their families or any of them, the registers kept from time to time in pursuance of the said regulations shall, in manner provided by the regulations for the time being in force, be authenticated and transmitted to the Registrar-General of Births and Deaths in England. Where it appears from any such register that an officer or soldier whose death or marriage is entered therein, or to whose family a person whose death, marriage, or birth is entered therein belonged, was a Scotch or Irish subject of Her Majesty, the Registrar-General of Births and Deaths in England shall, as soon as may be after receiving the register, send a certified copy of so much thereof as relates to such death, marriage, or birth to the Registrar-General of Births and Deaths in Scotland or Ireland, as the case may require. Every Registrar-General of births and deaths to whom a register or certified copy of a register is sent, in pursuance of this section, shall cause the same to be filed and preserved in or copied in a book to be kept by him for the purpose, and to be called the Army Register Book, and such book shall be deemed to- be a certified copy of the register book within the meaning of the Acts relating to the registration of births and deaths in England, Scotland, and Ireland respectively. 3. Whereas, under the directions of Her Majesty, or of one of Her Majesty’s Principal Secretaries of State, or the Commander- in-Chief or other lawful authority, various documents, such as registers, muster-rolls, and pay lists have been kept, showing the deaths and births which have occurred and the marriages which have been solemnized among officers and soldiers of Her Majesty’s land forces and their families: And whereas it is expedient to make further provision respect- ing the said documents: Be it therefore enacted as follows: Where any of such documents, or any certified extracts thereof made under the direction of one of Her Majesty’s Principal Secretaries of State, have either before or after the passing of this Act been tran smitted to the Registrar-General of Births and 52 YICT. C. 10. 727 Deaths in England, such documents or extracts shall be deemed to be in the legal custody of the said Eegistrar-General, and shall be admissible in evidence; and a copy of any such document or extract of, or any part thereof, if purporting to be certified to be a true copy under the seal of the register office of the Eegistrar- General, shall be admissible in evidence of such document, ex- tract, or part. 4. Nothing in this Act shall apply to any deaths, marriages, or births which occur in the United Kingdom, except where the same occurred before the commencement of this Act. 5. This Act shall come into operation on the first day of July one thousand eight hundred and seventy-nine, which day is in this Act referred to as the commencement of this Act. 52 Vict. c. 10 (Commissioners for Oaths Act, 1889). An Act for amending and consolidating enactments relating to the administration of, Oaths. [31st May, 1889.] Be it 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. — (1.) The Lord Chancellor may from time to time, by com- mission signed by him, appoint persons being practising solicitors or other fit and proper persons to be commissioners for oaths, and may revoke any such appointment. (2.) A commissioner for oaths may, by virtue of his commis- sion, in England or elsewhere, administer any oath or take any affidavit for the purposes of any Court or matter in England, including any of the ecclesiastical courts or jurisdictions, matters ecclesiastical, matters relating to applications for notarial faculties, and matters relating to the registration of any instru- ment, whether under an Act of Parliament or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the Supreme Court, including all proceedings on the revenue side of the Queen’s Bench Division. (3.) Provided that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding in which he is solicitor to any of the parties to the proceeding, or clerk to any such solicitor, or in which he is interested. Saving as to births, deaths, and marriages in the United Kingdom. Commence- ment of Act. Appointment and powers of commis- sioners for oaths. 728 APPENDIX C. COMMISSIONERS FOR OATHS. Powers of certain officers of Court, &c. to administer oaths. Taking of oaths out of England. Appointment of persons to administer oaths for prize pro- ceedings. Jurat to state where and when oath is taken. Powers as to oaths and notarial acts abroad. Amended by 54 & 55 Viet, c. 50, s. 2. 2. Every person who, being an officer of or performing duties in relation to any Court, is for the time being so authorized by a judge of the Court, or by or in pursuance of any rules or orders regulating the procedure of the Court, and every person directed to take an examination in any cause or matter in the Supreme Court, shall have authority to administer any oath or take any affidavit required for any purpose connected with his duties. 3. — (1.) Any oath or affidavit required for the purpose of any Court or matter in England, or for the purpose of the registra- tion of any instrument in any part of the United Kingdom, may be taken or made in any place out of England before any person having authority to administer an oath in that place. (2.) In the case of a person having such authority otherwise than by the law of a foreign country, judicial and official notice shall be taken of his seal or signature affixed, impressed, or sub- scribed to or on any such oath or affidavit. 4. The Lord Chancellor may, whenever it appears to him neces- sary to do so, authorize any person to administer oaths and take affidavits for any purpose relating to prize proceedings in the Supreme Court, whilst that person is on the high seas or out of Her Majesty’s dominions, and it shall not be necessary to affix any stamp to the document by which he is so authorized. 5. Every commissioner before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. 6. — (1.) Every British ambassador, envoy, minister, charge d’affaires, and secretary of embassy or legation exercising his functions in any foreign country, and every British consul- general, consul, vice-consul, acting-consul, pro-consul, and con- sular agent exercising his functions in any foreign place may, in that country or place, administer any oath and take any affidavit, and also do any notarial act which any notary public can do within the United Kingdom; and every oath, affidavit, and notarial act administered, sworn, or done by or before any such person shall be as effectual as if duly administered, sworn, or done by or before any lawful authority in any part of the United Kingdom. (2.) Any document purporting to have affixed, impressed, or subscribed thereon or thereto the seal and signature of any person authorized by this section to administer an oath in testimony of any oath, affidavit, or act being administered, taken, or done by or before him, shall be admitted in evidence without proof of the 52 VICT. c. 10. 729 seal or signature being the seal or signature of that person, or of the official character of that person. 7. Whoever wilfully and corruptly swears falsely in any oath •or affidavit taken or made in accordance with the provisions of this Act, shall be guilty of perjury in every case where if he had so sworn in a judicial proceeding before a Court of competent jurisdiction he would be guilty of perjury. 8. Whoever forges, counterfeits, or fraudulently alters the seal or signature of any person authorized by or under this Act to administer an oath, or tenders in evidence, or otherwise uses, any affidavit having any seal or signature so forged or counterfeited or fraudulently altered, knowing the same to be forged, counter- feited, or fraudulently altered, shall be guilty of felony, and liable on conviction to penal servitude for any term not exceeding seven years and not less than five years, or to imprisonment with or without hard labour for any term not exceeding two years. 9. Any offence under this Act, whether committed within or without Her Majesty’s dominions, may be inquired of, dealt with, tried, and punished in any county or place in the United King- dom in which the person charged with the offence was appre- hended or is in custody, and for all purposes incidental to or nonsequential on the trial or punishment the offence shall be deemed to have been committed in that county or place. 10. Where any offence under this Act is alleged to have been committed with respect to any affidavit, a judge of any Court before which the affidavit is produced may order the affidavit to be impounded and kept in such custody and for such time and on such conditions as he thinks fit. 11. In this Act, unless the context otherwise requires, — Perjury. Forgery. Trial of offences. Impounding of documents. Definitions. “Oath” includes affirmation and declaration: “ Affidavit ” includes affirmation, statutory or other declara- tion, acknowledgment, examination, and attestation or protestation of honour: “ Swear ” includes affirm, declare, and protest: “ Supreme Court ” means the Supreme Court of Judicature in England. 12. The enactments specified in the schedule to this Act are hereby repealed to the extent specified in that schedule. Provided that this repeal shall not affect — (a) anything done or suffered under any enactment repealed by this Act; nor (b) any appointment made under or authority given by or in pursuance of any enactment so repealed; nor 730 APPENDIX C. COMMISSIONERS FOR OATHS. Commissions issued before commence- ment of Act. Commence- ment. Short title. (c) any punishment incurred or to be incurred in respect of any offence committed before the commencement of this Act against any enactment so repealed; nor (d) any legal proceeding for enforcing any such punish- ment ; and any such legal proceeding may be instituted or continued and any such punishment may be imposed as if this Act had not been passed. 13. A commissioner authorized before the commencement of this Act to administer oaths in the Supreme Court shall be deemed to be a commissioner for oaths within the meaning of this Act. 14. This Act shall commence and come into operation on the first day of January one thousand eight hundred and ninety. 15. This Act may be cited as the Commissioners for Oaths Act, 1889. SCHEDULE. A description or citation of a portion of an Act is inclusive of the words, sections, or other parts, first and last mentioned, or otherwise referred to as forming the beginning, or as forming the end respectively, of the portion comprised in the description or citation. Session and Chapter. Title. Extent of Repej 16 & 17 Chas. 2, c. 9.. An Act to empower the Chancellor of the duchy to grant commissions for taking affidavits within the duchy liberty. The whole Act. 17 Geo. 2, c. 7 An Act for taking and swearing affidavits to be made use of in any of the courts of the county palatine of Lancaster. The whole Act. 4 Geo. 3, c. 21 An Act for taking and swearing affidavits to be made use of in any of the courts of the county palatine of Durham. The whole Act. 5 Geo. 4, c. 87 An Act to regulate the payment of salaries and allowances to British con- suls at foreign ports, and the disbursements at such ports for certain public purposes. Section twenty. 52 VICT. c. 10 731 Session and Chapter. Title. Extent of Repeal. 3 & 4 Will. 4, e. 42 . . An Act for the further amendment of the law and the better advance- ment of justice. | Section forty- two. 4 & 5 Will. 4, c. 42 . . An Act to facilitate the taking of affidavits and affirmations in the court of the Vice Warden of the Stannaries of Cornwall. The whole Act. 2 & 3 Viet. c. 58 .... An Act to make further pro- vision for the administra- tion of justice and for improving the practice and proceedings in the courts of the Stannaries of Corn- wall. Section six from “ and that any commissioner.” 5 & 6 Viet. c. 103.. .. An Act for abolishing cer- tain offices of the High Court of Chancery in England. Sections seven and eight. 6 & 7 Viet. c. 82 .... An Act the title of which begins with the words “ An Act for extending,” and ends with the words “ examination of wit- nesses.” Sections one to four. 11 & 12 Viet. c. 10 .. An Act for empowering cer- tain officers of the High Court of Chancery to ad- minister oaths and take declarations and affirma- tions. The whole Act. 15 & 16 Viet. c. 76 . . The Common Law Proce- dure Act, 1852. Section twenty - three. 15 & 16 Viet. c. 86 .. An Act to amend the prac- tice and course of pro- ceeding in the High Court of Chancery. Sections twenty- two, twenty-three and twenty-four. 16 & 17 Viet. c. 70 . . The Lunacy Regulation Act, 1853. Section fifty-seven. 16 & 17 Viet. c. 78 .. An Act relating to the ap- pointment of persons to administer oaths in Chan- cery, and to affidavits made for purposes con- ! nected with registration. The whole Act. 732 APPENDIX C. COMMISSIONERS FOR OATHS, Session and Chapter. 1 Title. Extent of Repeal. 17 & 18 Viet. c. 78 . . The T Admiralty Court Aot, 1854. Section six from “ and any exami- ner ” to the end of the section. Sections seven to eleven. 18 & 19 Viet. c. 42 . . An Act to enable British diplomatic and consular agents abroad to adminis- ter oaths and do notarial acts. The whole Act. 18 & 19 Viet. c. 134.. An Act the title of which begins with the words ‘ ‘ An Act to make further provision,” and ends with the words ‘ ‘ leasing and sale thereof.” Section fifteen. 20 & 21 Viet. c. 77 An Act to amend the law relating to probates and letters of administration in England. Section twenty- seven to ‘ ‘Provided that,” and from “and any person who ” to end of section. 21 & 22 Viet. c. 95 .. An Act to amend the Act of the twentieth and twenty - first Victoria, chapter seventy-seven. Sections thirty to thirty -four. 21 & 22 Viet. c. 108.. An Act to amend the Act of the twentieth and twenty- first Victoria, chapter eighty-five. Sections twenty to twenty-three. 22 Viet. c. 16 An Act the title of which begins with the words ‘ ‘ An Act to enable, ’ ’ and ends with the words ‘ ‘ of the Exchequer.” The whole Act ex- cept section five. 28 & 29 Viet. c. 104.. The Crown Suits, &c. Act, 1865. Sections eighteen, nineteen, forty - three, and forty- four. 32 & 33 Viet. c. 38 The Bails Act, 1869 The whole Act. 40 & 41 Viet. c. 25 . . The Solicitors Act, 1877 . . . . Section eighteen. 45 & 46 VICT. C. 75. 733 54 & 55 Vict. c. 50 (Commissioners for Oaths Act, 1891). An Act to amend the Commissioners for Oaths Act, 1889. [5 tli August, 1891.] Whereas doubts have been entertained whether the powers to administer oaths and take affidavits conferred on a commissioner for oaths by the Commissioners for Oaths Act, 1889, extend to oaths and affidavits required by special provisions to be made before a justice of the peace, or any particular person or officer, and it is expedient to remove such doubts: 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. Where by or under the Merchant Shipping Acts, 1854 to 1889, or the Customs Consolidation Act, 1876, or the Patents, Designs, and Trade Marks Acts, 1883 to 1888, or the Pawnbrokers Act, 1872, or Acts amending the same respectively, any oath or affidavit is required to be taken or made before any particular person or officer, whether having special authority or otherwise, and whether at any particular place, or within any specified limits or otherwise, such oath or affidavit may be taken or made before a commissioner for oaths, at any place, and shall be as effectual to all intents and purposes as if taken or made before such person or officer, and at any particular place or within specified limits. 2. In section six of the Commissioners for Oaths Act, 1889, after the words “ consular agent ” shall be inserted the words “ acting consul general, acting vice-consul, and acting consular agent.” 3. This Act shall be read with the Commissioners for Oaths Act, 1889, and may be cited as the Commissioners for Oaths Act, 1891, and the Commissioners for Oaths Act, 1889, and this Act may be cited together as the Commissioners for Oaths Acts, 1889 and 1891. 45 & 46 Vict. c. 75 (Married Women’s Property Act, 1882), s. 17. An Act to consolidate and amend the Acts relating to the ProjC'erty of Married Women. [18th August, 1882.] 17. In any question between husband and wife as to the title to or possession of property, either party, or any such bank, 52 & 53 Vict. c. 10. Affidavit, &c. may be made before com- missioner at any place. Amendment of 52 & 53 Vict. c. 10,s.6, as to acting consular agent. Construction and ghort title. Questions between 734 APPENDIX C. MARRIED WOMENS PROPERTY ACT, 1882. husband and wife as to property to be decided in a summary way. corporation, company, public body, or society as aforesaid in whose books any stocks, funds, or shares of either party are standing, may apply by summons or otherwise in a summary way to any judge of the High Court of Justice in England or Ireland, according as such property is in England or Ireland, or (at the option of the applicant irrespectively of the value of the property in dispute) in England to the judge of the county court of the district, or in Ireland to the chairman of the civil bill court of the division in which either party resides, and the judge of the High Court of J ustice or of the county court, or the chair- man of the civil bill court (as the case may be) may make such order with respect to the property in dispute, and as to the costs of and consequent on the application as he thinks fit, or may direct such application to stand over from time to time, and any inquiry touching the matters in question to be made in such manner as he shall think fit: Provided always, that any order of a judge of the High Court of Justice to be made under the pro- visions of this section shall be subject to appeal in the same way as an order made by the same judge in a suit pending or on an equitable plaint in the said Court would be, and any order of a county or civil bill court under the provisions of this section shall be subject to appeal in the same way as any other order made by the same court would be, and all proceedings in a county court or civil bill court under this section in which, by reason of the value of the property in dispute, such Court would not have had jurisdiction if this Act, or the Married Women’s Property Act, 1870, had not passed, may, at the option of the defendant or respondent to such proceedings, be removed as of right into the High Court of Justice in England or Ireland (as the case may be), by writ of certiorari or otherwise as may be prescribed by any rule of such High Court; but any order made or act done in the course of such proceedings prior to such re- moval shall be valid, unless order shall be made to the contrary by such High Court: Provided also, that the judge of the High Court of Justice or of the county court, or the chairman of the civil bill court, if either party so require, may hear any such application in his private room: Provided also, that any such bank, corporation, company, public body or society as aforesaid, shall, in the matter of any such application for the purposes of costs or otherwise, be treated as a stakeholder only. 56 & 57 vict. c. 63. 735 56 & 57 Vict. c. 63 (Married Women’s Property Act, 1893). An Act to amend the Married Women's Property Act, 1882. [5th December, 1893.] Be it 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. Every contract hereafter entered into by a married woman, otherwise than as agent, (a) shall be deemed to be a contract entered into by her with respect to and to bind her separate property whether she is or is not in fact possessed of or entitled to any separate property at the time when she enters into such contract; (b) shall bind all separate property which she may at that time or thereafter be possessed of or entitled to; and (c) shall also be enforceable by process of law against all pro- perty which she may thereafter while discovert be pos- sessed of or entitled to; Provided that nothing in this section contained shall render available to satisfy any liability or obligation arising out of such contract any separate property which at that time or thereafter she is restrained from anticipating. 2. In any action or proceeding now or hereafter instituted by a woman or by a next friend on her behalf, the Court before which such action or proceeding is pending shall have jurisdic- tion by judgment or order from time to time to order payment of the costs of the opposite party out of property which is subject to a restraint on anticipation, and may enforce such payment by the appointment of a receiver, and the sale of the property or otherwise as may be just. 3. Section twenty-four of the Wills Act, 1837, shall apply to the will of a married woman made during coverture whether she is or is not possessed of or entitled to any separate property at the time of making it, and such will shall not require to be re- executed or republished after the death of her husband. 4. Sub-sections (3) and (4) of section one of the Married Women’s Property Act, 1882, are hereby repealed. 5. This Act may be cited as the Married Women’s Property Act, 1893. 6. This Act shall not apply to Scotland. Effect of contracts by married women. Costs may be ordered to be paid out of property subject to restraint on anticipation. Will of married women. Repeal. Short title. Extent. 736 APPENDIX C. SUPREME COURT OF JUDICATURE ACT. Short title. Master of the Rolls to he Judge of Appeal only. 36 & 37 Viet, c. 66. Existing vacancy in Court of Appeal not to he filled up. President of Probate Divi- sion to be an ex-officio judge of Court of Appeal. 44 &45 Vict. c. 68 (Supreme Court of Judicature Act,. 1881). An Act to 0mendi the Supreme Court of Judicature Acts ; and for other 'purposes. [27th August, 1881.] 1. This Act may be cited as the Supreme Court of Judicature Act, 1881. 2. From and after the passing of this Act the present and every future Master of the Rolls shall cease to be a judge of Her Majesty’s High Court of Justice, but shall continue by virtue of his office to be a judge of Her Majesty’s Court of Appeal, and shall retain the same rank, title, salary, right of pension, patronage, and powers of appointment or dismissal, and all other powers, privileges, and disqualifications now and heretofore be- longing to the said office of Master of the Rolls and all other duties of the said office except that of a judge of Her Majesty’s High Court of Justice: Provided that the present Master of the Rolls shall not by virtue of this Act be subject to any disqualifica- tion to which he is not by law now subject, nor shall be required to act under any commission of assize, nisi prius, oyer and terminer, or gaol delivery; and the existing personal officers of the Master of the Rolls shall continue to be attached to him and be under his authority, and to hold their respective offices upon the same tenure and in the same manner in all respects as if this Act had not passed: Provided also, that any Master of the Rolls to be hereafter appointed shall be under an obligation to go circuits and to act as a commissioner under commissions of assize,, or other commissions authorised to be issued in pursuance of the Supreme Court of Judicature Act, 1873, in the same manner in all respects as he would have been under the last-mentioned Act, or any Acts or Act amending the same, if he had continued to be a judge of the Chancery Division of the High Court of Justice. 3. The vacancy now existing among the ordinary judges of the said Court of Appeal shall not be filled up, and the number of ordinary judges of that Court shall henceforth be five. 4. The President for the time being of the Probate, Divorce, and Admiralty Division of the High Court of J ustice shall hence- forth be an ex-officio judge of Her Majesty’s Court of Appeal with the same powers, and in the same manner in all respects as the other ex-officio judges thereof; he shall not be entitled in the said Court to any precedence over any existing judge to which 44 & 45 VICT. c. 68. 737 he would not have been entitled as a judge of the Supreme Court of Judicature if this Act had not passed. 5. It shall be lawful for Her Majesty to supply the vacancy in the High Court of Justice, to be occasioned by the removal there- from of the Master of the Rolls, by the appointment, immediately after the passing of this Act, and from time to time afterwards, of a judge, who shall be in the same position as if he had been appointed a puisne judge of the said High Court in pursuance of the Judicature Acts, 1873 and 1875; and all the provisions of the Supreme Court of Judicature Acts, 1873 and 1875, for the time being in force in relation to the qualification and appointment of puisne judges of the said High Court, and to their duties and tenure of office, and to their precedence, and to their salaries and pensions, and to the officers to be attached to the persons of such judges, and all other provisions relating to such puisne judges, or any of them, with the exception of such provisions as apply to existing judges only, shall apply to the judge appointed in pur- suance of this section, in the same manner as they apply to the other puisne judges of the said High Court respectively. The judge so appointed shall be attached to the Chancery Division of the said High Court, subject to such power of transfer as is in the Supreme Court of Judicature Act, 1873, mentioned. 6. The power given to Her Majesty by the Supreme Court of Judicature Act, 1877, to appoint a judge of the High Court of Justice in addition to the number of judges authorized to be appointed by the Supreme Court of Judicature Acts, 1873 and 1875, may be exercised by Her Majesty from time to time, so as at all times to make due provision for the business of the Chancery Division of the High Court of Justice: Provided that no such appointment shall be made unless or until the number of judges attached for the time being to the Chancery Division of the High Court, other than the Lord Chancellor, is, by death, resignation, or otherwise, reduced below five. 7. The Lord Chancellor shall have power by order under his hand to direct that the court and chambers, heretofore used by the Master of the Rolls as a judge of the Chancery Division of the High Court of Justice, shall (so long as may be necessary or convenient) be used by such judge of the said Chancery Division of the said High Court as shall be in any such order in that behalf named; and the chief and other clerks, and other officers, here- tofore attached to the said court and chambers respectively, shall (subject to any rules or orders of Court) be and continue attached to the judge to be named in any such order, and, after such court 47 New judge of High Court instead of Master of the Rolls. 36 & 37 Viet, c. 66. 38 & 39 Viet, c. 77. J udge under 40 & 41 Viet, c. 9. Rolls Court Chambers and clerks, &c. D.M.C. 738 APPENDIX C. SUPREME COURT OF JUDICATURE ACT. Title of justices. 40 & 41 Viet, c. 9. Appeals under Divorce Acts. 39 & 40 Viet, c. 59. As to appeal against decrees nisi for dissolu- tion or nullity of marriage. and chambers shall have ceased to be so used, to the judge to whom the business previously transacted in such court and chambers respectively shall be for the time being assigned. 8. And whereas it is expedient to amend section four of the Supreme Court of Judicature Act, 1877: Be it enacted that the exception of presidents of divisions from the enactment that the judges of the High Court of Justice shall be styled Justices of the High Court shall not apply to any judge to be hereafter appointed who may be or become President of the Probate, Divorce, and Admiralty Division of the High Court of Justice. 9. All appeals which, under section fifty-five of the Act of the twentieth and twenty-first years of her present Majesty, chapter eighty-five, or under any other Act, might be brought to the full Court established by the said first-mentioned Act, shall hence- forth be brought to Her Majesty’s Court of Appeal and not to the said full Court. The decision of the Court of Appeal on any question arising under the Acts relating to divorce and matrimonial causes, or to the declaration of legitimacy, shall be final, except where the decision either is upon the grant or refusal of a decree on a petition for dissolution or nullity of marriage, or for a declaration of legitimacy, or is upon a question of law on which the Court of Appeal give leave to appeal; and, save as aforesaid, no appeal shall lie to the House of Lords under the said Acts. Subject to any order made by the House of Lords, in accordance with the Appellate Jurisdiction Act, 1876, every appeal to the House of Lords against any such decision shall be brought within one month after the decision appealed against is pronounced by the Court of Appeal if the House of Lords is then sitting, or, if not within fourteen days after the House of Lords next sits. This section, so far as is consistent with the tenor thereof, shall be construed as one with the said Acts. 10. No appeal from an order absolute for dissolution or nullity of marriage shall henceforth lie in favour of any party who, having had time and opportunity to appeal from the decree nisi on which such order may be founded, shall not have appealed therefrom. 53 & 54 VICT. c. 44. 739 47 & 48 Vict. c. 61, s. 14 (Supreme Court of Judicature Act, 1884). An Act to amend the Supreme Court of Judicature Acts ; and for other purposes. [14th August, 1884.] 14. Where any person neglects or refuses to comply with a judgment or order directing him to execute any conveyance, contract, or other document, or to indorse any negotiable instru- ment, the Court may, on such terms and conditions (if any) as may be just, order that such conveyance, contract, or other document shall be executed, or that such negotiable instrument shall be indorsed by such person as the Court may nominate for that purpose; and in such case the conveyance, contract, docu- ment, or instrument so executed or indorsed shall operate and be for all purposes available as if it had been executed or indorsed by the person originally directed to execute or indorse it. 53 & 54 Vict. c. 44 (Supreme Court of Judicature Act, 1890). An Act to amend the Supreme Court of Judicature Acts. [14th August, 1890.] Be it 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. From and after the commencement of this Act every motion for a new trial, or to set aside a verdict, finding, or judgment (&), in any cause or matter in the High Court in which there has been a trial thereof, or of any issue therein with a jury shall be heard and determined by the Court of Appeal and not by a divisional court of the High Court: Provided always, that such motions shall be heard and determined before not less than three judges of the Court of Appeal sitting together. This section shall extend to every such motion of which notice may have been given, whether before or after the passing of this (&) This does not apply to a motion for a re-hearing of a Divorce Cause, which has been heard by a judge without a jury, which must still be made to a Divisional Court. See ante , pp. 223, 525. 47 (2) Execution of instruments by order of the Court. Motions for new trial. 740 Motions for judgment. Power to make rules. Criminal and bankruptcy matters. Costs. Extent of Act. Commence- ment and short title. Ex-Lord Chancellor to be a judge of Court of Appeal. APPENDIX C. — SUPREME COURT OF JUDICATURE ACT. Act, but which has not been heard before the commencement of this Act. 2. Every motion for judgment in any such case or matter shall be heard and determined by the judge before whom such trial with a jury took place, and not by a divisional court, unless it be impossible or inconvenient that such judge should act, in which case such motion shall be heard and determined by some other judge to be nominated by the president of the division to which the cause or matter belongs. 3. The power of making rules conferred by the Supreme Court of Judicature Act, 1873, and the Acts amending the same shall extend to this Act. 4. Nothing in this Act shall alter the practice in any criminal cause or matter or in bankruptcy, or in proceedings on the Crown side of the Queen’s Bench Division. 5. Subject to the Supreme Court of Judicature Acts, and the rules of Court made thereunder, and to the express provisions of any statute, whether passed before or after the commencement of this Act, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom and to what extent such costs are to be paid. 6. This Act shall not apply to Ireland or Scotland. 7. This Act shall commence on the twenty-fourth day of October one thousand eight hundred and ninety, and may be cited for all purposes as the Supreme Court of Judicature Act,. 1890. 54 & 55 Vict. c. 53 (Supreme Court of Judicature Act,. 1891 ). An Act to amend the Suprerrie Court of Judicature Acts. [5th August, 1891 .j Be it 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. Every person who has held the office of Lord Chancellor shall be an ex-officio judge of the Court of Appeal, but he shall not be required to sit and act as a judge of that Court, unless upon the request of the Lord Chancellor he consents so to do. 54 & 55 vict. c. 53, 741 and while so sitting and acting he shall rank therein according to his precedence as a peer. 2. Whenever there is a vacancy in the office of a judge of the High Court who is president of the Probate, Divorce, and Admiralty Division thereof, it shall be lawful for Her Majesty, by letters patent, to appoint to that office as president of the said division any person who is a barrister of not less than fifteen years’ standing, or who is a judge of the High Court or Court of Appeal, and the person so appointed shall, without prejudice to the rights of any judge of the Supreme Court existing at the passing of this Act, take precedence in Court next after all ordinary judges of the Court of Appeal appointed before the time at which he shall become an ordinary or ex-officio member thereof. 3. For the purpose of aiding the House of Lords in the hearing and determination of appeals in Admiralty actions, the House may, in any such appeal in which it may think it expedient to do so, call in the aid of one or more assessors specially qualified, and hear such appeal wholly or partially with the assistance of such assessors. This section shall be carried into effect in pursuance of orders made by the House of Lords. 4. Whereas doubts have arisen with respect to the position of the High Court in England and appeals therefrom in cases of prize, and it is expedient to remove such doubts: Be it therefore enacted as follows: (1.) The High Court in England shall be a prize court within the meaning of the Naval Prize Act, 1864, and shall have all such jurisdiction on the high seas, and throughout Her Majesty’s dominions, and in every place where Her Majesty has jurisdiction, as under the Naval Prize Act, 1864, or otherwise the High Court of Admiralty pos- sessed when acting as prize court. (2.) Subject to rules of Court, all causes and matters within the jurisdiction of the High Court under this Act as a prize court shall be assigned to the Probate, Divorce, and Admiralty Division of the Court. (3.) Any appeal from the High Court when acting as a prize court shall lie only to Her Majesty in Council, in accord- ance with the Naval Prize Act, 1864. 5. This Act may be cited as the Supreme Court of Judicature Act, 1891, and shall be construed as one with the Supreme Court of Judicature Acts, 1873 to 1890, which Acts, with this Act, may be cited together ( as the J udicature Acts, 1873 to 1891. President of Probate, Divorce, and Admiralty Division. Assessors in HoU 80 of Lords. Explanation of position of High Court of Justice under 27 & 28 Viet, c. 25. Short titles and con- struction. 742 APPENDIX C. — MARRIAGE ACT, 1865. 57 & 58 Vict. c. 16 (Supreme Court of Judicature (Procedure) Act, 1894). See ante, pp. 531, 532. Colonial laws establishing validity of marriages to have effect throughout Her Majesty’s dominions. Not to give effect to marriages unless parties are competent to contract marriage. Definition of “ Legisla- ture.” 28 & 29 Vict. c. 64. An Act to remove Doubts respecting the Validity of cer- tain Marriages contracted in Her Majesty's Possession# Abroad. [29th June, 1865.] Whereas laws have from time to time been made by the legis- latures of divers of Her Majesty’s possessions abroad for the purpose of establishing the validity of certain marriages pre- viously contracted therein, but doubts are entertained whether such laws are in all respects effectual for the aforesaid purpose beyond the limits of such possessions: 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 . Every law made or to be made by the legislature of any such possession as aforesaid for the purpose of establishing the validity of any marriage or marriages contracted in such possession shall have and be deemed to have had from the date of the making of such law the same force and effect for the purpose aforesaid within all parts of Her Majesty’s dominions as such law may have had or may hereafter have within the possession for which the same was made: Provided that nothing in this law contained shall give any effect or validity to any marriage unless at the time of such marriage both of the parties thereto were, according to the law of England, competent to contract the same. 2. In this Act the word “ legislature ” shall include any autho- rity competent to make laws for any of Her Majesty’s possessions abroad, except the Parliament of the United Kingdom and Her Majesty in Council. 42 & 43 VICT. C. 29. 743 31 & 32 Vict. c. 61 (Consular Marriage Act, 1868). An Act for removing Doubts as to the Validity of certain Marriages between British Subjects in China and else- where , and for amending the Law relating to the Marriage of British Subjects in Foreign Countries . [16th July, 1868.] 42 & 43 Yict. c. 29. An Act to remove Doubts to the Validity of certain Mar- riages of British Subjects on board Her Majesty's ships. [21st July, 1879.] Whereas officers commanding Her Majesty’s ships on foreign stations have permitted marriages to be solemnized according to religious rites or ceremonies, or to be contracted per verba de prcesenti in the presence of such officers, in the belief that marriages were authorized by law to be so solemnized and con- tracted, and doubts have arisen with respect to the validity of such marriages, and it is expedient to confirm the same. 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 . This Act may be cited as “ The Confirmation of Marriages on Her Majesty’s Ships Act, 1879.” 2. All marriages, both of the parties being British subjects, which before the passing of this Act have been solemnized on board one of Her Majesty’s vessels on a foreign station in the presence of the officer commanding such vessel, whether solemnized according to any religious rite or ceremony, or con- tracted per verba de prcesenti, shall be valid in like manner as if the same had been solemnized within Her Majesty’s dominions with the due observance of all forms required by law. Provided that this enactment shall not render valid any mar- riage which before the passing of this Act has been declared invalid by any court of competent jurisdiction in any proceeding touching such marriage, or any right dependent on the validity or invalidity thereof, or render valid any marriage where either of the parties has before the passing of this Act and during the life of the other party lawfully intermarried with any person. Repealed by 55 & 56 Vict. c. 23. Short title. Confirmation of marriages of British subjects solemnized on board Her Majesty’s ships. 744 APPENDIX C. GREEK MARRIAGES ACT. Certain mar- riages at chapels in Finsbury 47 & 48 Vict. c. 20. An Act to remove Doubts as to the Validity of certain Mar- riages of Members of the Greek Church in England. [3rd July, 1884.] Whereas it is alleged that certain marriages have been from time to time, between the years one thousand eight hundred and thirty-six and one thousand eight hundred and fifty-seven, solemnized between members of the Greek Church in the Greek Chapel then situate at 9, Finsbury Circus, in the City of London, and afterwards, within the said period, at London Wall, in the said city: And that similar marriages have been from time to time, within the said period, solemnized at the residences of members of the said church: And that such marriages were respectively solemnized in con- formity with the rites and ceremonies of the Greek Church by a priest of that Church, and entries of the said respective marriages so solemnized have from time to time been made in the register book kept for that purpose at the said chapels respectively, or otherwise, in the custody of the said priest: And that the said marriages were respectively solemnized in the belief that the aforesaid conformity to and compliance with the rites and ceremonies of the Greek Church constituted a com- pliance with the law of England: And whereas objections may be made to the validity of such marriages, by reason of the same not having been solemnized in any consecrated or licensed church or chapel of the Church of England, or in any registered building, or at the office of the registrar, and not having been solemnized after due publication of banns, or under licence or special licence, or in the presence of a Clerk in Holy Orders of the Church of England, or a registrar of marriages, and it is expedient to confirm, in the manner and subject to the proviso hereinafter mentioned, any marriage which may have been contracted in the manner and under the circumstances aforesaid, notwithstanding all or any of the aforesaid defects : 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. Any party to any such marriage as aforesaid, and any child or grandchild of any such party, and any person interested in the validity of any such marriage, may respectively apply to the 47 & 48 VICT. C. 20 , 745 Probate and Matrimonial Division of Her Majesty’s High Court of Justice by petition, praying the Court for a decree declaring that such marriage was a valid marriage; and the said Court shall have jurisdiction to hear and determine such application, and shall, if an entry of such marriage shall appear to have been duly made upon the register book aforesaid, and if the Court be satisfied that such marriage was solemnized in the manner and in the belief aforesaid, and was in all other respects good and lawful, declare the same to have been a valid marriage, notwith- standing all or any of the defects aforesaid: Provided always, that this Act shall not extend to render valid any marriage which before the passing thereof has been declared invalid by any Court of competent jurisdiction in any proceeding touching such marriage, or any right dependent on the validity or invalidity thereof, or any marriage where either of the parties thereto has afterwards during the life of the other intermarried with any other person. Any petition under this Act shall be accompanied by such affidavit verifying the same as the said Court may from time to time direct. In respect of all matters and things by this Act not specially provided for, the provisions of sections five, six, and seven of the Act 21 & 22 Viet. c. 93, shall mutatis mutandis apply, and all proceedings under this Act shall be had and taken in conformity therewith, and with such of the rules for the time being in force with reference to applications to the Court under the said Act as may be applicable, or with such rules as the judges of the said Court for the time being authorized to make rules may from time to time prescribe. 2. Provided always, and be it further enacted, that the status of any person or any right of any person to any real or personal property or any estate or interest of any such person in any real or personal property which may be dependent on the invalidity of any such marriage shall not be altered, taken away, or in- juriously affected by any decree made under the provisions of this Act; but shall be and remain as valid and effectual in law to all intents and purposes as if this Act had not been passed. 3. The priest of the Greek Church, or other the person in whose custody the register books relating to such marriages as aforesaid shall be kept, on the passing of this Act, shall forth- with transmit to the registrar of the probate and matrimonial registry a copy signed by him of the register aforesaid, and the said registrar shall receive and preserve the same in the said registry. 4. This Act may be cited as the Greek Marriages Act, 1884. Circus and London Wall or at resi- dence of members of Greek Church, to be valid. Saving for status and right to pro- perty depen- dent on in- validity of marriage. Certificates of marriages to be trans- mitted to probate and matrimonial registry. Short title. 746 Short title and con- struction. 6 & 7 Will. 4, c. 85. Extent of Act. Commence- ment of Act. Solemnization of marriages without presence of registrar. Notices and forms. APPENDIX C. — MARRIAGE ACT, 1898 . 61 & 62 Vict. c. 58 (Marriage Act, 1898 ). An Act to amend the Law relating to the Attendance of Registrars at Marriages in Nonconformist Places of Worship. [12th August, 1898. j Be it 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. — (1.) This Act may be cited as the Marriage Act, 1898, and may be cited with the Marriage Acts, 1811 to 1886. (2.) The term “registered building,” wherever used in this Act, shall mean any building registered for solemnizing mar- riages therein under the Marriage Act, 1836. (3.) Por the purposes of this Act, as applied to Roman Catholic registered buildings, the words “ trustees or governing body ” shall include the bishop or vicar general of the diocese. 2. This Act shall not extend to Scotland or Ireland. 3. This Act shall come into operation on the first day of April one thousand eight hundred and ninety-nine. 4. Notwithstanding anything contained in section twenty of the Marriage Act, 1836, marriages may be lawfully solemnized in the registered building named in the notice of the marriages and in the superintendent registrar’s certificate or certificate and licence issued pursuant to the provisions of the said Act, or any Act amending the same, between and by the parties described in the notice and certificate or certificate and licence, according to such form and ceremony as they may see fit to adopt, without the presence of any registrar, but in the presence of such duly authorized person as herein-after mentioned, and subject in all other respects, excepting as is herein provided, to all the con- ditions and provisoes contained in the said Act and any Acts amending the same. 5. — (1.) Whenever a marriage is intended to be solemnized in a registered building, and the parties intending to contract the marriage have duly fulfilled all the conditions from time to time required by law to entitle the superintendent registrar to issue a certificate or certificate and licence authorizing the marriage, and the superintendent registrar does not receive notice, at the time when the form of notice of marriage as required by law is given to him, that the parties intending to contract the marriage require a registrar to be present at the marriage, the super- intendent registrar shall, subject to the provisions of this Act, 61 & 62 VICT. c. 58. 747 issue under his hand to one of those parties a certificate, or, certificate and licence, as the case may require, in accordance with the forms set forth in Schedules B. and C. annexed to the Marriage and Begistration Act, 1856. (2.) The superintendent registrar shall at the same time give to one of the parties intending to contract the marriage printed instructions in the prescribed form for the due solemnization of the marriage. 6. — (1.) Where a marriage is solemnized under this Act each of the parties contracting the marriage shall in some part of the ceremony make the following declarations: — “ I do solemnly declare that I know not of any lawful impedi- ment why I, A. B., may not be joined in matrimony to C. D.” And each of the parties shall say to the other the words follow- ing:— “ I call upon these persons here present to witness that I, A. B., do take thee, C. D., to be my lawful wedded wife [or husband],” or in lieu thereof the words following: — “I, A. B., do take thee, C. D., to be my wedded wife [or husband].” (2.) The aforesaid declarations shall be made in the presence of the authorized person herein-after mentioned and two or more witnesses. (3.) No marriage under this Act shall be solemnized in any registered building except in the presence of a person (in this Act referred to as an authorized person) certified as having been duly authorized for the purpose by the trustees or other govern- ing body of the building, or of some registered building in the same registration district. (4.) Where a person has been so authorized in respect of any registered building, the trustees or governing body of that build- ing shall, within the prescribed time and in the prescribed manner, certify the name and address of the person or persons authorized for that building to the registrar general and to the superintendent registrar of the district in which the building is situate. 7. — (1.) In the case of the solemnization of a marriage under this Act, the certificate or certificate and licence required by law shall be delivered to the authorized person in whose presence the marriage is solemnized, who shall, immediately after the marriage, register in duplicate in two of the marriage register books provided for the purpose the several particulars relating to the marriage according to the form in Schedule C. annexed to 19 & 20 Viet, c. 119. Declarations to be made in presence of authorized person. Register books and returns. 748 APPENDIX C. — MARRIAGE ACT, 1898. 6 & 7 Will. 4, c. 86. 6 & 7 Will. 4, c. 86. Custody of certificate and licence. Fees. 6 & 7 Will. 4, c. 86. 19 & 20 Viet, c. 119. Saving for right to require attendance of registrar. Provisions as to registers the Births and Deaths Registration Act, 1836, and every such entry shall be signed by the authorized person, and by the parties to the marriage, and by two witnesses; and all such entries shall be made in consecutive order from the beginning to the end of each book, and the numbers of the place of entry of each duplicate marriage register book shall be the same. (2.) The registrar general shall, when so requested by the authorized person, or the trustees or governing body of any registered building in which marriages may be solemnized under this Act, supply a sufficient number, in duplicate, of such mar- riage register books and forms for certified copies thereof as may be required for the purposes of this Act. (3.) A marriage under this Act shall not be solemnized in any registered building until duplicate register books have been so supplied. (4.) If the registrar general is not satisfied with respect to any building registered, or proposed to be registered, for the solemnization of marriages therein, that sufficient security exists for the due registration of marriages under this Act and for the safe custody of marriage register books, he may in his discretion attach to the continuance on the register or registration of the building a condition that no marriages under this Act shall be solemnized therein. (5.) Section thirty- five of the Births and Deaths Registration Act, 1836, shall apply in the case of a person having the custody of a marriage register book under rules made in pursuance of this Act, in like manner as it applies in the case of a rector, vicar, or curate. 8. The certificate or certificate and licence, as the case may be, shall be kept in the prescribed custody, and shall be produced with the marriage register books as and when required by the registrar general. 9. The fees payable to the superintendent registrars under the Marriage Act, 1836, and the Marriage and Registration Act, 1856, in respect of marriages, whether with or without licence, shall be payable in respect of marriages under this Act. 10. Where the contracting parties give notice to the superin- tendent registrar that it is the wish of the parties to be married in the presence of the district registrar, nothing in this Act con- tained shall relieve the registrar from attendance at such mar- riage as now by law required and the fulfilment of the duties now imposed by law, and in case of such attendance the registrar shall be entitled to the fees now authorized by law. 11. — (1.) The authorized person for a registered building shall, in the months of April, July, October, and January respectively, 61 & 62 VICT. c. 58. 749 make and deliver to the superintendent registrar of the district in which the registered building is situate, on forms supplied by the registrar general, a true copy certified by him under his hand of all the entries of marriages in the register book since' the date of the last certified copy, and if there has been no marriage registered in the book since that date, shall certify the fact under his hand on a form to be supplied by the registrar general, and shall in accordance with rules under this Act keep the marriage register books safely until they are filled. (2.) The superintendent registrar shall pay or cause to be paid to the authorized person the sum of sixpence for every entry contained in the said certified copy, and this sum shall be reim- bursed to the superintendent registrar by the board of guardians of the union for which he is appointed. (3.) When any such register book is filled, one copy thereof shall be delivered to the superintendent registrar of the district in which the registered building is situate, and the other shall be kept in the prescribed custody. (4.) Section twenty-nine of the Births and Deaths Registra- tion Act, 1837, shall apply in the case of an authorized person in like manner as it applies in the case of a rector, vicar, or curate. (5.) Every superintendent registrar shall four times in every year send to the registrar general the certified copies received by him under this section in the same manner and under the same conditions as are directed with respect to the certified copies of marriages solemnized in churches and chapels under the Births and Deaths Registration Act, 1836. 12. If any authorized person refuses or fails to comply with this Act, or the enactments or regulations for the time being in force with respect to the solemnization and registration of marriages, he shall be guilty of an offence under this Act, and shall be liable, on summary conviction, to a penalty not exceeding ten pounds, or on conviction on indictment to imprisonment with or without hard labour for a term not exceeding two years or to a fine not exceeding fifty pounds, and shall, upon conviction, cease to be an authorized person. 13. Nothing in this Act shall be taken to relate or have any reference to marriages solemnized in accordance with the practice and usages of the Society of Friends or of persons professing the Jewish religion. 14. Section twenty-three of the Births and Deaths Registra- tion Act, 1837, relating to marriages in the Welsh tongue, shall apply in the case of marriages under this Act. and certified copies. 7 Will. 4 & 1 Yict. c. 22. 6 & 7 Will. 4, c. 86. Offences. Saving for Society of Friends and Jews. Provisions for marriage in the Welsh tongue. 750 APPENDIX C. — MARRIAGE ACT, 1898 . Repeal. 6 & 7 Will. 4, c. 85. Rules. Temporary- provision as to fees. 15. So much of sections thirty-nine and forty- two of the Marriage Act, 1836, as punishes the solemnization of or renders void any marriage by reason of the absence of the registrar is hereby repealed in respect of any marriage authorized by and solemnized in accordance with this Act. 16. The registrar general may, with the approval of the Local Government Board, make rules with respect to — (a) The forms to be used for the purposes of this Act; (b) The custody of documents required for the purposes of this Act; (c) The duties of registrars, superintendent registrars, and authorized persons under this Act; (d) Any matter which may under this Act be prescribed; and generally for carrying into effect the provisions of this Act. 17. — (1.) On the issue of any certificate for a marriage to be solemnized in accordance with this Act, the parties to the marriage shall pay to the superintendent registrar of the dis- trict in which the registered building selected for the marriage is situate, an additional fee of six shillings and sixpence if the marriage is by licence, and otherwise a fee of four shillings. Provided that not more than one such fee shall be paid in respect of any one marriage. (2.) Where there is only one registrar of marriages for the district, who was appointed before the passing of this Act, the superintendent registrar shall, at the end of each quarter, pay the fees so received by him to that registrar, and where there are more such registrars he shall, at the end of each quarter, divide the amount of the fees so received by him among those registrars in accordance with rules to be made under this Act. (3.) This section shall not continue in force for more than ten years from the commencement of this Act, and shall not apply to a district unless there is acting therein a registrar of 1 marriages appointed before the passing of this Act. Validation of certain marriages. 62 & 63 Vict. c. 27 (Marriages Validity Act, 1899 ). An Act to remove doubts as to the Validity of certain Mar- riages . [9th August, 1899.] Be it 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. No marriage solemnized, or to be hereafter solemnized, in any church in England or in Ireland, after publication of banns 1 EDW. 7, c. 23. 751 in such church, shall be or be deemed to have been invalid by reason only that one of the parties to such marriage was in the case of a marriage in England resident in Ireland, or in the case of a marriage in Ireland resident in England, and that banns may have been published in any church of the parish or place in which such party was resident, according to the law or custom there prevailing, and not in the manner required for the publi- cation of banns in the part of the United Kingdom in which the marriage has been solemnized. 2. This Act may be cited as the Marriages Validity Act, 1899. 1 Edw. 7, c. 23 (Marriages Legalization Act, 1901). An Act for legalizing Marriages heretofore solemnized in certain Churches and Places. [17th August, 1901.] Whereas doubts have arisen as to the validity of certain mar- riages solemnized in certain churches and places mentioned in this Act, and it is expedient to remove those doubts: Be it therefore enacted by the King’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. — (1.) All banns of matrimony and marriages published or solemnized in the churches and places mentioned in the first column of the schedule to this Act between the dates mentioned as respects each such church or place in the second column of that schedule shall be as valid as if they had been published or solemnized in a church duly consecrated and licensed for marriages. (2.) All banns of matrimony and marriages published or solemnized in the church of St. Mary, Gf-reenhithe, Kent, in respect of persons residing on board the two training ships moored in the Thames off Grreenhithe before the seventeenth day of October one thousand eight hundred and ninety-nine shall be as valid as if those two training ships had been comprised, as they now are, within the new parish of St. Mary, Gtreenhithe. (3.) A minister who has solemnized any marriage to which this section refers shall not be liable to any ecclesiastical censure, or to any proceedings for penalties whatsoever, by reason of having solemnized the marriage. (4.) The register of the marriages so solemnized, or copies of the register, shall be received in all courts as evidence of those marriages in the same manner as registers of marriages in parish churches or copies thereof are by law receivable in evidence. Short title. Legalizing marriages solemnized in certain churches. 752 APPENDIX C. — MARRIAGES LEGALIZATION ACT, 1901. Short title. 2. This Act may be cited as the Marriages Legalization Act,. 1901. SCHEDULE. Church or Place. Dates. The church of the district (now new parish) of New Basford (Notting- ham). Christ Church, Bradford (York) St. Andrew’s Church, Dalton-le-Dale (Durham). The church of the new parish of the Lodge (Salop). The church of the parish of Llansaint- ffraid Cwmtoyddwr or Cwmdauddwr (Radnor) . St. Helens Church, Ore (Sussex) St. Saviour’s Church, Ringley (Lan- caster) . St. John’s Old Church, Sleights (York), in the Ancient Chapelry of Ugglebarnby. St. John’s New Church, Sleights (York), in the Ancient Chapelry of Ugglebarnby. The church of the Ancient Chapelry of Ugglebarnby (York). St. John’s Church, in the district (now new parish) of St. John, Ipswich (Suffolk). St. Peter’s Church, Woodmansey, in the parish of Beverley Minster (York). The parish room of Cadney, in the parish of Cadney-cum-ITowsham (Lincoln) . The chapel of Howsham, in the parish of Cadney-cum-Howsham (Lincoln) . St. Tanwg’s Church, Harlech, in the parish of Llandanwg, Merioneth. The parish church of Uldale, in the county of Cumberland. Between 15th March, 1877, and 27th May, 1897. Between 3rd December, 1879, and 30th November, 1899. Between 12th July, 1877, and the date of the passing of this Act. Between 23rd April, 1878, and 27th July, 1899. Between 26th October, 1865, and 15th June, 1899. Between the date of the con- secration of the church in 1870 and 27th July, 1899. Between 10th June, 1854, and 7th November, 1895. Between 1st January, 1828, and the date of the passing of this Act. Between 20th September, 1895, and the date of the passing of this Act. Between 1st January, 1828, or the date of the consecration of the church if before the 1st January, 1828, and the date of the passing of this Act. Between 9th December, 1899,. and 8th March, 1900. Between 9th December, 1898, and the date of the passing of this Act. Between 1st January, 1895, and the date of the passing of this Act. Between 1st January, 1899, and the date of the passing of this Act. Between 18th February, 1839,. and the date of the passing of this Act. Between 17th August, 1869, and 4th July, 1901. 3 edw. 7, 0. 26. 753 3 Edw. 7, c. 26 (Marriages Legalization Act, 1903). An Act to render valid Marriages heretofore solemnized at the Ellerker Chapel-of-Ease, Brantingham, and at the Churches of Saint Mark, Mar sk e-in-Cleveland, All Saints , Brightwaltham ( otherwise Brightwalton), and Saint Mary, Great Ilford, and at the Old Baptist Union Chapel, Grays Thurrock, and Marriages solemnized after banns published at the Mission Boom in the Parish of Marrick. [14th August, 1903.] Whereas the Ellerker Chapel-of-Ease, in the parish of Brant- ingham, in the county and diocese of York, was rebuilt and con- secrated for the performance of divine service in the year eighteen hundred and forty-four, but does not appear to have been licensed by the bishop of the said diocese or otherwise for the publication of banns and the solemnization of marriages therein : And whereas the church of Saint Mark, in the parish of Marske-in-Cleveland, in the county and diocese of York, was built and consecrated in the year eighteen hundred and sixty- seven, and the church of All Saints in the parish of Bright- waltham (otherwise Brightwalton), in the county of Berkshire and diocese of Oxford, was built and consecrated in the year eighteen hundred and sixty-three, and in each case the church so built was intended to be substituted for the ancient parish church of the parish, but it does not appear that any deed of sub- stitution was executed at the time: And whereas by a deed of substitution dated the twenty-fourth of April nineteen hundred and two, the church of Saint Clement, Great Ilford, in the county of Essex and diocese of Saint Alban’s, was substituted as the parish church for the old parish church of Saint Mary, and the latter church thereby ceased to be one in which marriages could legally be solemnized until again licensed by the bishop: And whereas divers marriages have nevertheless been solem- nized in the said chapel and churches respectively: And whereas in the years nineteen hundred and one and nineteen hundred and two certain marriages were solemnized in the Old Baptist Union Chapel at Grays Thurrock, in the district of Orsett, in the county of Essex, and the said chapel was not registered by the registrar general pursuant to the Marriages 6 & 7 Will. 4 Act, 1836: c. 85. D.M.C. 48 754 APPENDIX C. — MARRIAGES LEGALIZATION ACT, 1903. Validation of certain marriages heretofore solemnized. And whereas since the month of September in the year eighteen hundred and ninety-three certain banns have been published in the Mission Room of the parish of Marrick in the North Riding of the county of York and in the diocese of Ripon, and certain marriages have been solemnized after those banns, but that Mission Room was not licensed for the publication of banns: And whereas it is expedient under the circumstances aforesaid to remove all doubts touching the validity of the marriages so solemnized : Be it therefore enacted by the King’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. — (1.) All banns of matrimony and marriages published and solemnized before the passing of this Act in the said Ellerker Chapel-of-Ease and in the said churches of Saint Mark, Marske- in-Cleveland, All Saints, Brightwaltham (otherwise Bright- walton), and Saint Mary, Great Ilford, shall be as valid as if they had been published and solemnized in a church duly con- secrated and licensed for marriages. (2.) All marriages solemnized in the said Old Baptist Union Chapel at Grays Thurrock, in the district of Orsett, in the county of Essex, during the years aforesaid, shall be as valid as if the said chapel had been duly registered in accordance with the provisions of the above recited Act before the solemnization of those marriages. (3.) All banns published in the said Mission Room in the parish of Marrick since the month of September in the year eighteen hundred and ninety-three, and all marriages solemnized after those banns, shall be as valid as if the Mission Room had been duly licensed for the publication of banns. (4.) A minister who has solemnized any marriage to which this section refers shall not be liable to any proceedings for penalties whatsoever, or to any ecclesiastical censure, by reason of having solemnized the marriage. (5.) The register of the marriages so solemnized, or copies of the register, shall be received in all courts as evidence of those marriages in the same manner as registers of marriages duly solemnized, or copies thereof, are by law receivable in evidence. 2. This Act may be cited as the Marriages Legalization Act, 1903. Short title. 49 & 50 vict. c. 27. 755 49 & 50 Vict. c. 27 (Guardianship of Infants). An Act to amend the Law relating to the Guardianship and Custody of Infants. [25th June, 1886.] Whereas it is expedient to amend the law relating to the guardianship and custody of infants. Be it 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. This Act may be cited as the Guardianship of Infants Act, 1886. 2. On the death of the father of an infant, and in case the father should have died prior to the passing of this Act then from and after the passing of this Act, the mother if surviving shall be the guardian of such infant, either alone when no guardian has been appointed by the father, or jointly with any guardian appointed by the father. When no guardian has been appointed by the father, or if the guardian or guardians appointed by the father is or are dead, or refuses or refuse to act, the Court may, if it shall think fit, from time to time appoint a guardian or guardians to act jointly with the mother. 3. — (1.) The mother of an infant may by deed or will appoint any person or persons to be guardian or guardians of such infant after the death of herself and the father of such infant (if such infant be then unmarried), and where guardians are appointed by both parents they shall act jointly. (2.) The mother of any infant may by deed or will provi- sionally nominate some fit person or persons to act as guardian or guardians of such infant after her death jointly with the father of such infant, and the Court, after her death, if it be shown to the satisfaction of the Court that the father is for any reason unfitted to be the sole guardian of his children, may confirm the appointment of such guardian or guardians who shall thereupon be authorized and empowered so to act as aforesaid, or make such other order in respect of the guardianship as the Court shall think right. (3.) In the event of guardians being unable to agree upon a question affecting the welfare of an infant, any of them may apply to the Court for its direction, and the Court may make such order or orders regarding the matters in difference as it shall think proper. Short title. On death of father, mother to be guardian alone or jointly with others. Mother may appoint guardian, in certain cases. 48 (2) 756 APPENDIX C. — GUARDIANSHIP OF INFANTS ACT. Powers of guardian. Court may- make orders as to custody. Power to Court to remove guardian. Guardianship in case of divorce or judicial separation. Application of Act to Scotland. Interpreta- tion of terms. 4. Every guardian in England and Ireland under this Act shall have all such powers over the estate and the person, or over the estate (as the case may be), of an infant as any guardian appointed by will or otherwise now has in England under the Act twelve Charles the Second, chapter twenty- four, or in Ireland under the Act of the Irish Parliament fourteen and fifteen Charles the Second, chapter nineteen, or otherwise. 5. The Court may, upon the application of the mother of any infant (who may apply without next friend), make such order as it may think fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father, and may alter, vary, or discharge such order on the application of either parent, or, after the death of either parent, of any guardian under this Act, and in every case may make such order respecting the costs of the mother and the liability of the father for the same or otherwise as to costs as it may think just. 6. In England and Ireland the High Court of Justice, in any division thereof, and in Scotland either division of the Court of Session, may, in their discretion, on being satisfied that it is for the welfare of the infant, remove from his office any testamen- tary guardian, or any guardian appointed or acting by virtue of this Act, and may also, if they shall deem it to be for the welfare of the infant, appoint another guardian in place of the guardian so removed. 7. In any case where a decree for judicial separation, or a decree either nisi or absolute for divorce, shall be pronounced, the Court pronouncing such decree may thereby declare the parent by reason of whose misconduct such decree is made to be a person unfit to have the custody of the children (if any) of the marriage ; and, in such case, the parent so declared to be unfit shall not, upon the death of the other parent, be entitled as of right to the custody or guardianship of such children. 8. In the application of this Act to Scotland the word “ guardian ” shall mean tutor, and the word “ infant ” shall mean pupil. 9. In the construction of this Act the expression “ the Court ” shall mean — In England the High Court of Justice or the county court of the district in which the respondent or respondents or any of them may reside. In Ireland the High Court of Justice or the county court of the district in which the respondent or respondents or any of them may reside. 49 & 50 vict. c. 27. 757 In Scotland the Court of Session or the sheriff court within whose jurisdiction the respondent or respondents or any of them may reside. Any application under this Act to the High Court of Justice in England or to the High Court of Justice in Ireland shall be made to the Chancery Division of the said Courts respectively in such manner as may be prescribed by rules of court. In Scotland the expression “ the Court of Session ” shall mean either division of the said Court, and in vacation the Lord Ordinary on the bills. 10. In England and Ireland when any application has been As to re- made under this Act to a county court the High Court of Justice mo Yl n & P r0 " shall, at the instance of any party to such application, order such appeals, application to be removed to the High Court of Justice and there proceeded with before a judge of the Chancery Division, on such terms as to costs as it may think proper. In England and Ireland an appeal shall lie to the High Court of Justice from any order made by a county court under this Act; and, subject to any rules of court made after the passing of this Act, any such appeal shall be heard by a judge of the Chancery Division of the High Court of Justice at chambers or in court, as he shall direct. In Scotland any application made under this Act to a sheriff court may be removed to the Court of Session, at the instance of any party, in the manner provided by and subject to the condi- tions prescribed by the ninth section of the Sheriff Courts 40 & 41 Vict. (Scotland) Act, 1877. c - 50 - In Scotland an appeal shall lie to either division of the Court of Session from any order made by the Lord Ordinary on the bills or a sheriff court under this Act. 11. Eules for regulating the practice and procedure in any Eules as to proceeding under this Act, and the forms in such proceedings procedure, may from time to time be made — (a) So far as respects the High Court of Justice or Her Majesty’s Court of Appeal in England or Ireland by rules of court; and (b) So far as respects the Court of Session in Scotland by Act of Sederunt; and (c) So far as respects any county court in England or Ireland and the Sheriff Court in Scotland in like manner as rules and orders respecting those courts can respectively for the time being be made. 758 APPENDIX C. PROVISIONAL ORDER (MARRIAGES) ACT. Tutors. Saving clause. 12. In Scotland tutors being administrators-in-law, tutors- nominate, and guardians appointed or acting in terms of this Act who shall, by virtue of their office, administer the estate of any pupil, shall be deemed to be tutors within the meaning of an Act passed in the twelfth and thirteenth years of the reign of her Majesty, intituled “ An Act for the better protection of the property of pupils, absent persons, and persons under mental incapacity, in Scotland,” and shall be subject to the provisions thereof: provided always, that such tutors being administrators- in-law, tutors-nominate, and guardians aforesaid shall not be bound to find caution in terms of the twenty-sixth and twenty- seventh sections of the last recited Act, unless the Court, upon the application of any party having interest, shall so direct. 13. Nothing in this Act contained shall restrict or affect the jurisdiction of the High Court of Justice in England, and of the High Court of Justice in Ireland, or of any division of the said courts, and of the Court of Session in Scotland, to appoint or remove guardians, or (in the case of Scotland) tutors or factors loco tutoris or otherwise in respect of infants. 21 & 22 Viot. c. 93 (The Legitimacy Declaration Act, 1858). See ante , Chap. XIII., pp. 204 — 207. 58 & 59 Vict. c. 39 (Summary Jurisdiction (Married Women) Act, 1895). See ante , Chap. XIV., pp. 212 — 215. 5 Edw. 7, c. 23 (Provisional Order (Marriages) Act, 1905). An Act to enable Provisional Orders to be made for re- moving any invalidity or doubt attaching to Marriages by reason of some informality . [11th August, 1905.] Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, 6 EDW. 7, C. 40. 759 and Commons, in this present Parliament assembled, and by the authority of the same, as follows: — 1. — (1.) A Secretary of State may, in the case of marriages solemnized in England which appear to him to be invalid or of a doubtful validity by reason of some informality, make a pro- visional order for the purpose of removing such invalidity or doubt. (2.) The draft of every such order shall be advertised, in such manner as the Secretary of State thinks fit, not less than one month before the order is made, and the Secretary of State shall consider all objections to the order sent to him in writing during that month, and shall, if it appears to him necessary, direct a. local inquiry into the validity of any such objections. (3.) An order of the Secretary of State under this Act shall be of no force unless confirmed by Parliament, and the Secretary of State may bring in a Bill for confirming the order; and if while a Bill confirming any such order is pending in either House of Parliament a petition is presented against the order, the Bill, so far as it relates to the order, may be referred to a Select Com- mittee, and the petitioner shall be allowed to appear and oppose as in the case of Private Bills. 2. This Act may be cited as the Provisional Order (Marriages) Act, 1905. 6 Edw. 7, c. 40 (Marriage with Foreigners Act, 1906). An Act to amend the Law with respect to Marriages be- tween British Subjects and Foreigners. [29th. November, 1906.] Be it enacted by the King’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. — (1.) Any British subject who desires to be married in a foreign country to a foreigner according to the law of that country may, if it is desired for the purpose of complying with the requirement of the law of that country to obtain the certifi- cate hereinafter mentioned, give notice of the marriage, if resident in the United Kingdom, to the registrar, and if resident abroad to the marriage officer, and apply to the registrar or Provisional orders for removing doubts as to the validity of marriages. Short title. Marriages of British subjects with foreigners abroad. 760 APPENDIX C. MARRIAGE WITH FOREIGNERS ACT. officer for a certificate that after proper notices have been given no legal impediment to the marriage has been shown to the registrar or officer to exist, and the registrar or officer shall, after the conditions set out in the Schedule to this Act have been complied with, give the certificate applied for, unless the certificate is forbidden or a caveat is in operation as provided in that Schedule, or some legal impediment to the marriage is shown to the registrar or officer to exist. (2.) If a person — (a) knowingly and wilfully makes a false oath or signs a false notice of marriage for the purpose of a certifi- cate under this section; or 54 & 55 Viet, c. 36. Marriage of foreigners with British subjects in the United Kingdom. (b) forbids the granting of a certificate under this section by falsely representing himself to be a person who is authorized to forbid the certificate, knowing that re- presentation to be false, that person shall be guilty of perjury, and, if the offence is com- mitted abroad, may be tried in any county or place in the United Kingdom in which the offender may be, and dealt with in all respects, as if the offence had been committed in that county or place. (3.) If any person enters a caveat on grounds which the re- gistrar or officer, or, in case of appeal, the Registrar-General declares to be frivolous, that person shall be liable to pay as a debt to the applicant for the certificate such sum as the registrar or officer or, in the case of appeal, the Registrar-General con- siders to be proper compensation for the damage caused to the applicant by the entering of the caveat. (4.) Such fees may be charged in respect of any notice of an intended marriage, or any application for, or grant of a certifi- cate, or the entering of a caveat under this section, as may be fixed, as respects certificates to be granted by or caveats entered with registrars, by the Registrar-General, with the consent of His Majesty in Council, and, as regards certificates to be granted by or caveats entered with a marriage officer, as may be fixed by Order under the Consular Salaries and Fees Act, 1891. 2.— (1.) Where arrangements have been made to the satis- faction of His Majesty with any foreign country for the issue by the proper officers of that country, in the case of persons subject to the marriage law of that country proposing to marry British subjects in the United Kingdom, of certificates that after proper notices have been given, no impediment according to the law of 6 edw. 7, c. 40. 761 that country has been shown to exist to the marriage, His Majesty may, by Order in Council, make regulations — (a) requiring any person, subject to the marriage law of that country, who is to be married to a British subject in the United Kingdom, to give notice of the fact that he is subject to the marriage law of that country to the person by or in the presence of whom the marriage is to be solemnized: and (b) forbidding any person to whom such a notice has been given to solemnize the marriage or allow it to be solem- nized until such a certificate as aforesaid is produced to him. (2.) If any person knowingly acts in contravention of, or fails to comply with, any such regulation he shall be liable to a fine not exceeding one hundred pounds, or to imprisonment for a term not exceeding one year. (3.) Nothing in this section shall be taken to relate' or have any reference to any marriages between two persons professing the Jewish religion solemnized according to the usages of the Jews in the presence of a secretary of a synagogue authorized by either the Births and Deaths Registration Act, 1836, or the Marriages (Ireland) Act, 1844, or by the Marriage and Regis- tration Act, 1856, to register such a marriage, or of a deputy appointed by such secretary by writing under his hand, and approved by the President for the time of the London committee of deputies of the British Jews by writing under his hand. 3. His Majesty may by Order in Council make general regu- lations prescribing the forms to be used under this Act and making such other provisions as seem necessary or expedient for the purposes of this Act, and may by Order in Council revoke, alter, or add to any Order in Council made under this Act. 4. In this Act unless context otherwise requires, — The expressions “ Registrar-General ” and “ registrar ” mean respectively the Registrar-General within the mean- ing of the Births and Deaths Registration Act, 1836, and a superintendent registrar of marriages within the mean- ing of the Marriage Act, 1836; and The expression “ marriage officer ” means a marriage officer for the time being under the Foreign Marriage Act, 1892, and includes any person for the time being empowered to register a marriage under section 18 of that Act. 6 & 7 Will. 4, c. 86. 7 & 8 Viet, c. 81. 19 & 20 Viet, c. 119. Power to make general regulations. Interpreta- tion. 55 & 56 Viet, c. 23. 762 APPENDIX C. — EVIDENCE (COLONIAL STATUTES) ACT. Application to Scotland. 17 & 18 Viet, c. 80. Application in Ireland. Short title. 5. In the application of this Act to Scotland — (1.) Eeferences to the forbidding of a certificate shall not apply; (2.) A reference to a caveat shall be construed jas a reference to an objection, and the provisions respecting the entry of a caveat on frivolous grounds shall not apply; (3.) The expressions “ Eegistrar-General ” and “ registrar ” mean respectively the Eegistrar-General of births, deaths, and marriages in Scotland, and the registrar of births, deaths, and marriages for a parish or dis- trict under the Begistration of Births, Deaths, and Marriages (Scotland) Act, 1854, and the Acts amend- ing that Act. (4.) Paragraph (a) of sub-section one of section two shall be read as if the following words were inserted after the word “ solemnized,” namely, “ or to any registrar, law agent, or other person whom he desires to draw up any declaration of irregular marriage between him and a British subject”; and paragraph (b) of the same sub-section shall be read as if the following words were inserted after the word “ solemnized,” namely, “ or to aid in effecting the said irregular marriage ”; (5.) The duly appointed minister of a synagogue shall be substituted in sub-section (3) of section two for the secretary of the synagogue or deputy as described in that sub-section. 6. In the application of this Act to Ireland the expressions “ Eegistrar-General ” and “ registrar ” mean respectively the Eegistrar-General and registrar within the meaning of the Marriages (Ireland) Act, 1844. 7. This Act may be cited as the Marriage with Foreigners Act, 1906. 7 Edw. 7, c. 16 (Evidence (Colonial Statutes) Act, 1907). An Act to facilitate the admission in evidence of statutes 'fussed by the Legislatures of British possessions and protectorates including Cyprus. [21st August, 1907.] Be it enacted by the King’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, 7 EDW. 7 , C. 16 . 763 and Commons, in this present Parliament assembled, and by the authority of the same, as follows: — 1. — (1.) Copies of Acts, ordinances, and statutes passed (whether before or after the passing of this Act) by the Legis- lature of any British possession, and of orders, regulations and other instruments issued or made, whether before or after the passing of this Act, under the authority of any such Act, ordinance, or statute, if purporting to be printed by the Govern- ment printer, shall be received in evidence by all courts of justice in the United Kingdom, without any proof being given that the copies were so printed. (2.) If any person prints any copy or pretended copy of any such Act, ordinance, statute, order, regulation, or instrument which falsely purports to have been printed by the Government printer, or tenders in evidence any such copy or pretended copy which falsely purports to have been so printed, knowing that it was not so printed, he shall, on conviction, be liable to be sentenced to imprisonment with or without hard labour for a period not exceeding twelve months. (3.) In this Act — The expression “ Government printer ” means, as respects any British possession, the printer purporting to be the printer authorized to print the Acts, ordinances or statutes of the Legislature of that possession, or otherwise to be the Government printer of that possession: The expression “ British possession ” means any part of His Majesty’s dominions exclusive of the United Kingdom, and, where parts of those dominions are under both a central and a local Legislature, shall include both all parts under a central Legislature and each part under a local Legislature. (4.) Nothing in this Act shall affect the Colonial Laws Validity Act, 1865. (5.) His Majesty may by Order in Council extend this Act to Cyprus and any British protectorate, and where so extended this Act shall apply as if Cyprus or the protectorate were a British possession, and with such other necessary adaptations as may be made by the order. 2. This Act may be cited as the Evidence (Colonial Statutes) Act, 1907. Proof of statutes of British possessions. 28 & 29 Viet, c. 63. 764 APPENDIX C. DECEASED WIFE’S SISTER’S MARRIAGE. Marriage with a deceased wife’s sister not to be deemed void as a civil contract except in certain cases. Saving of existing rights and interests. 7 Enw. 7, c. 47 (Deceased Wife’s Sister’s Marriage Act, 1907). An Act to amend the Law relating to Marriage with a Deceased Wife's Sister. [28th August, 1907.] Be it enacted by the King’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. No marriage heretofore or hereafter contracted between a man and his deceased wife’s sister, within the realm or without, shall be deemed to have been or shall be void or voidable, as a civil contract, by reason only of such affinity: Provided always that no clergyman in holy orders of the Church of England shall be liable to any suit, penalty, or censure whether civil or ecclesi- astical, for anything done or omitted to be done by him in the performance of the duties of his office to which suit, penalty, or censure he would not have been liable if this Act had not been passed. Provided also, that when any minister of any church or chapel of the Church of England 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 may permit any other clergyman in holy orders in the Church of England, entitled to officiate within the diocese in which such church or chapel is situate, to perform such marriage service in such church or chapel. Provided also that in case, before the passing of this Act, any such marriage shall have been annulled or either party thereto (after the marriage and during the life of the other) shall have lawfully married another, it shall be deemed to have become and to be void upon and after the day upon which it was so annulled, or upon which either party thereto lawfully married another as aforesaid. 2. No right, title, estate or interest, whether in possession or expectancy, and whether vested or contingent at the time of the passing of this Act, existing in, to, or in respect of, any dignity, title of honour, or property, and no act or thing lawfully done or omitted before the passing of this Act shall be prejudicially affected nor shall any will be deemed to have been revoked by reason of any marriage heretofore contracted as aforesaid being 9 EDW. 7, C. 39. 765 made valid by this Act. And no claim by the Crown for duties leviable on or with reference to death and before the passing of this Act due and payable, and no payment, commutation, com- position, discharge, or settlement of account in respect of any duties leviable on or with reference to death before the passing of this Act duly made or given, shall be prejudicially affected by any thing herein contained. Nothing in this Act shall affect the devolution or distribution of the real or personal estate of any intestate, not being a party to the marriage, who at the time of the passing of this Act shall be, and shall until his death continue to be, a lunatic so found by inquisition. 3. — (1.) Nothing in this Act shall remove wives’ sisters from the class of persons adultery with whom constitutes a right on the part of wives to sue for divorce under the Matrimonial Causes Act, 1857. (2.) Notwithstanding anything contained in this Act or the Matrimonial Causes Act, 1857, it shall not be lawful for a man to marry the sister of his divorced wife, or of his wife by whom he has been divorced during the lifetime of such wife. 4. Nothing in this Act shall relieve a clergyman in holy orders of the Church of England from any ecclesiastical censure to which he would have been liable if this Act had not been passed,' by reason of his having contracted or hereafter contracting a marriage with his deceased wife’s sister. 5. In this Act the word sister shall include a sister of the half-blood. 6. This Act may be cited as the Deceased Wife’s Sister’s Marriage Act, 1907. 9 Edw. 7, c. 39 (Oaths Act, 1909). An Act to amend the Law as to Oaths. [25th November, 1909.] Be it enacted by the King’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. This Act may be cited for all purposes as the Oaths Act, 1909, and the Oaths Act, 1888, and this Act may be cited together as the Oaths Acts, 1888 and 1909. Saving for 20 & 21 Viet, c. 85, s. 27. Liability of clergyman to ecclesiastical censure. Interpreta- tion. Short title. Short title. 51 & 52 Viet, c. 46. 766 APPENDIX C. OATHS ACT, 1909. Manner of administra- tion of oaths. Definition. Commence- ment and extent. 2. — (1.) Any oath may be administered and taken in the form and manner following: — The person taking the oath shall hold the New Testament, or in the case of a Jew, the Old Testament, in his uplifted hand, and shall say or repeat after the officer administering the oath the words, “ I swear by Almighty God that . . . ,” followed by the words of the oath prescribed by law. (2.) The officer shall (unless the person about to take the oath voluntarily objects thereto, or is physically incapable of so taking the oath) administer the oath in the form and manner aforesaid without question : Provided that, in the case of a person who is neither a Christian nor a Jew, the oath shall be adminis- tered in any manner which is now lawful. 3. In this Act the word “ officer ” shall mean and include any and every person duly authorized to administer oaths. 4. — (1.) This Act shall come into operation on the first day of January nineteen hundred and ten. (2.) This Act shall not apply to Scotland. SUPREME COURT, ENGLAND. Procedure. The Rules of the Supreme Court (Poor Persons). Dated April 28, 1913. ORDER XVI. Part IV. (Rules 22 to 31, both inclusive) of Order XVI. of the Rules of the Supreme Court, 1883, is hereby repealed and the following Rules shall stand in lieu thereof, viz.: — IV . — Proceedings by and against Poor Persons. 22. Any person may be admitted to take or be a party to any legal proceedings as a poor person on satisfying the Court or a Judge that he has a reasonable cause of action or defence and that his means do not exceed the sum of £50 (excluding his wearing apparel, household goods, tools of trade and the subject matter of the action) or such larger sum not exceeding £100 as the Judge may under special circumstances and having regard to the probable cost of the litigation personally direct. 23. There shall be kept by the prescribed officer in every Divi- sion of the High Court, and in such District Registries as the Lord Chancellor shall from time to time direct: — (1) Lists of solicitors and of counsel willing to be assigned to inquire into and report upon the application of any person to take or be a party to any legal proceedings as a poor person. (2) Lists of solicitors and of counsel willing to be assigned to assist poor persons when admitted in the conduct of the proceedings. 24. A person desirous of being so admitted as a poor person shall make an application in the form stated in the Appendix hereto (which may be cited as Eorm No. 1J of Appendix K to the Rules of Supreme Court, 1883) stating his means, and the name of any proposed party to such proceedings and the nature of the applicant’s case, and giving the names and addresses of two or more persons to whom reference can be made. 768 RULES OF THE SUPREME COURT (POOR PERSONS). 25. The application shall he referred for enquiry to one or more solicitors or counsel willing to act in the matter and whether named in the list to be kept pursuant to Rule 23 (1) or not, who shall report whether and upon what terms the applicant ought to be admitted as a poor person. For the purpose of their report, the reporters may make such enquiries as they think fit as to the means and position of the applicant and as to the merits of his case and may require the attendance of the applicant and may hear any other person, and may require facts to be proved by affidavit. It shall also be competent to the reporters if and when- ever having regard to the nature of the case before them they deem it desirable to invite the attendance before them of any opposite party and in making their report they shall have regard to the probable cost of the litigation in relation to the matter in dispute. 26. Upon the production of the report mentioned in the pre- ceding paragraph the Court or a Judge may admit the applicant to take or be a party to legal proceedings, as a poor person. And the Court or Judge or proper officer shall assign to the applicant a solicitor and a counsel (whether named in the list kept pur- suant to Rule 23 (2) or not) to assist him in the conduct of the proceedings, but no solicitor or counsel who shall have reported on the case shall be so assigned nor shall any co-partner of a solicitor who shall have so reported be so assigned. It shall not be lawful for the applicant to discharge any solicitor or counsel so assigned without the leave of the Court or Judge. 27. A solicitor or counsel assigned under Rule 26, shall not be at liberty to refuse his assistance unless he satisfies the proper officer or the Court or a Judge that he has some good ground for refusing. 28. When a person is applying or is admitted to take or be a party to any legal proceedings as a poor person, he shall not be liable to any court fees nor to pay costs to any other party, except as provided by the Rules of this Order, and no person shall take or agree to take or seek to obtain from him any fees, profit, or reward, either for the enquiry or report or for the conduct of the proceedings; and any person so doing shall be guilty of a contempt of court. Provided that nothing contained in this rule shall preclude any solicitor or counsel from receiving remuneration out of any fund which may from time to time be created by the Treasury for the payment of the out-of-pocket expenses or other charges of solicitors or the fees of counsel so assigned. If any person so applying or admitted shall give or agree to give any such fee, profit or reward, his application or ORDER XVI. 769 admission, as the case may be, may be dismissed or struck out, in which case he shall not afterwards be admitted as a party in the same cause as a poor person unless otherwise ordered. 29. Notwithstanding the preceding Rule costs ordered to be paid to a poor person shall unless the Court or a Judge shall otherwise order, be taxed as in other cases, and in the event of the J udge certifying that the person ordered to pay such costs has acted unreasonably in prosecuting or defending the proceedings such costs shall include such fees for solicitor and other expenses (not including fees to counsel unless paid or payable out of such fund as aforesaid) as might properly have been allowed in an ordinary action, and as the taxing master shall determine. 30. When a substantial amount is recovered by a poor person so admitted the Court or a Judge may order the payment out of the amount so recovered to the solicitor of such taxed costs (not including fees of counsel unless paid or payable out of such fund as aforesaid) as would have been allowed to the solicitor on taxa- tion between himself and his client if he had been retained by his client in the ordinary manner, less such amount as may be recovered from any other party provided that the total amount so paid out shall not exceed one-fourth of the amount recovered. 31 . Any fees or other charges allowed on taxation under either of the preceding Rules which shall have been already paid out of such fund as aforesaid shall be refunded to the Treasury. 31a. Every notice of motion summons or petition on behalf of a poor person (except an application for admission to take or be a party to legal proceedings or for discharge of his solicitor) shall be signed by his solicitor. It shall be the duty of the solicitor to take care that no such application be made without due cause. Where in the opinion of the Judge any such application has been made without due cause the Court may — (1) Order that the solicitor shall pay the costs of such appli- cation of the opposite part}' or, (2) Order that in the event of the applicant recovering any substantial amount in the action the costs of the opposite party of such application shall be set off against the amount recovered. 31b. There shall be no appeal by a person admitted to sue or defend as a poor person under these Rules without the leave of the Court or the Judge by whom the matter is tried or of the Court of appeal. 31c. If any person who has not taken or been a party to any legal proceedings as a poor person in the High Court shall desire to be admitted on the appeal to the Court of Appeal as a poor D.M.C. 49 770 RULES OF THE SUPREME COURT (POOR PERSONS). person the like procedure shall he followed as is provided by these rules for the High Court and the application shall be referred by the Court of Appeal or proper officer for enquiry as if the application were made in that Division of the High Court from which the appeal is brought. 31d. The prescribed officer shall be (1) in the Chancery Divi- sion such one of the Masters as the Lord Chancellor shall from time to time nominate for the purpose; (2) in the King’s Bench Division such one of the Masters as the Lord Chief Justice shall from time to time nominate for the purpose; (3) in the Probate, Divorce and Admiralty Division such one of the Registrars as the President shall from time to time nominate for the purpose; and (4) in a District Registry the District Registrar. 32. These Rules may be cited as the Rules of the Supreme Court (Poor Persons), or may be cited by the heading and number thereof with reference to the Rules of the Supreme Court, 1883. They shall come into operation on the 12th day of October, 1913. APPENDIX. In the High Court of Justice, [Chancery] Division. In the matter of an action [or proposed action, or other pro- ceeding as the case may be]. [State the parties to the action, short particulars of the nature of the proposed action, or other proceeding, and the names and addresses of the persons to whom reference may be made.] I, the above named of in the County of hereby apply to be admitted as a poor person to prosecute [or defend] the above-mentioned action [or proposed action or other proceeding], and I declare that my means (excluding my wearing apparel, household goods, and tools of trade and the subject-matter of the proposed action or other proceeding) do not exceed the sum of £ Signed To the prescribed officer Dated the 28th day of April, 1913. INDEX ABANDONMENT, of domicil of origin, 9. of acquired domicil, 11, 12. ABATEMENT OF SUIT, practice as to, 388. ABDUCTION, as ground for nullity, 125, 126. See Nullity. ABSOLUTE DEFENCES IN DISSOLUTION, what are, 31. See Dissolution of Maeeiage. ACCESS. See Custody and Access. ACCOMPLICES, value of evidence of, 269. ACT ON PETITION, practice as to, 395 — 404. forms, pleadings in (No. 1) (Form 59), 398, 399. (No. 2) (Form 60), 400—403. See also Affidavits. ACTION, by wife having protection order, 173. ACTS OF PARLIAMENT, list of, xxix. ADDRESS FOR SERVICE within three miles of the General Post Office must be given in all cases, 339. ADMINISTRATION, to wife having protection order, 174. ADMISSIONS, value of, as evidence, 271, 272. See Evidence. 49 ( 2 ) 772 INDEX. ADULTERER, damages against, 133 — 137. See Damages. ADULTERY, coupled with cruelty or desertion, 29, 30. of petitioner, 31, 47 — 54. conduct conducing to, 57 — 60. no answer to suit for nullity, 131. intervention by parties charged with, 198 — 203, 353 — 355. parties not compelled to answer questions as to, 252, 269. committed after date of petition, 256. proof of, 269 — 272. See also Dissolution; Judicial Separation; Restitution of Conjugal Rights; Nullity; Damages; Decree and Inter- vention; Variation of Settlements; Evidence; Costs. AFFIDAVIT IN VERIFICATION OF PETITION, practice as to, 298, 299, 408, 416, 421, 431, 498. AFFIDAVITS, practice as to, 604 — 610. forms of, verifying petition for dissolution (Form 7), 298. ibid, endorsement of (Form 8), 299. of service of citation (Form 15), 307. of advertisement of citation (Form 18), 313. of service of citation, after order for substituted service (Form 19), 314. in support of application for leave to amend pleading (Form 27), 329. verifying supplemental petition (Form 29), 334. of search for appearance (1) (Form 30), 338. in support of answer (Form 39), 352. of search for appearance (2) (Form 46), 371. of search for answer (Form 47), 372. of search for reply (Form 48), 372. as to means (alimony) (Form 57), 393. verifying petition for judicial separation (Form 63), 408. of service of petition for alimony (Form 90), 459. of service of summons and non-attendance (Form 105), 522. of justification of sureties (Form 114), 556. jurat, general form of (Form 117), 606. in support of summons for commission, &c. or examination (Form 118), 612. as to documents (Form 127), 632. See Evidence. AFFINITY, as ground of nullity, 99, 100, 124, 125. table of prohibited degrees, 277 — 279. See Nullity. AFFIRMATIONS, practice as to, 610. See Evidence. AGENT, parties bound by acts of, 34, 59. See Dissolution. INDEX. 773 AGREEMENT, not to sue for conjugal rights, decree in spite of, 90. as to custody of child, 147. to suppress material facts, 197, 198. See Restitution of Conjugal Rights; Custody and Access; Decree and Intervention. ALIMONY AND MAINTENANCE, 148—168, 174. pendente lite, what is, 148. permanent, what is, 148. distinction between alimony and maintenance, 148. settling gross or annual sum after divorce, 148, 149. interim orders as to, 149. ordering monthly or weekly payments, 149. power to award alimony, whence derived, 150. on what principles exercised, 150. alimony pendente lite , 150 — 158. practice as to, in Ecclesiastical Courts, 150 — 152. when payable, 150. nature of suit, 151. particulars of husband’s income, 151. husband’s answer, 151. amount allowed, 151. reduction, in what cases liable to, 151. circumstances of case considered, 152. arrears, enforcement of, 152. payment, when commenced, 152. appeal interposed, 152. practice as to, since 1857... 152 — 158. wife guilty of adultery, 153. unreasonable delay, 153. plea to jurisdiction, 153. payment, when commences, 153. respondent and co-respondent cohabiting, 153. wife appealing, enforcement of arrears, 153. committing adultery pending suit, 153. convicted of felony, 153. payable until decree absolute, 154. order for, after decree nisi , 154. marriage clearly bigamous, 154. wife destitute, application for small sum pending allotment of, 154. husband without means, 154. out of employment, 154. voluntary allowance to, considered, 154. all valuable property of, considered, 155. rule as to rate of, 155. husband supporting children, 155. liable for expenses of wife until order for, 155. wife, vexatious suits by, 155. earnings of, 156. living apart from husband, 156. possessed of means, 156. charge of prostitution against, 156. allowance to, by husband, under deed of separation, 156. agreement not to molest by, 157. obtaining protection order, 157. payments made for, by husband since citation, 157. husband paying debt by instalments, 157. 774 INDEX. ALIMONY AND MAINTENANCE — continued, alimony 'pendente lite — continued. power to order after decree nisi, 157. payable during appeal, 157. application to reduce amount, 158. arrears, enforcement of, 158. purely personal allowance, 158. permanent alimony and maintenance, 158 — 168. powers of Court, 158. practice of Ecclesiastical Courts, when binding, 159. refusal to consider amount before decree absolute, 159. order for, may be made after decree absolute, 159. money in savings bank, 159. limit of amount in judicial separation, 160. Court will not bind husband’s property irrevocably, 160. wife’s conduct reprehensible, 160. amount awarded, one-half, 160. one-fourth plus provision for children, 160. reduction of order, 160. deductions allowable, 161. maintenance, general rule one- third, 161. husband’s income large, 161. lump sum ordered (1898), 161. but power of Court to do so questioned (1903), 161, 162. general principles, 161 (n.). order by consent, 162. partnership business, basis of calculation of husband’s income, 162. arrears, promise to release, 162. wife entitled to separate estate, 162, 163. dum sola et casta clause, discretion of Court as to, 163. guilty wife, allowance to, 163. wife’s cruelty, judicial separation for, 164. divorce to husband convicted of cruelty (1904), 164. conduct of parties a material matter, 164. “ dum sola,'” word “ casta ” omitted, 165. order to pay to solicitor, 165. injunction to restrain husband from dealing with property, 165, 166. refused in judicial separation, 165, 166. from receiving legacy, 165. g rounds for altering amount of permanent alimony, 163, 164, 166—168. husband receiving increased salary, 166. adultery of wife, 166. wife receiving allowance from husband, 166. as a rule parties bound by inquiry on order for alimony pen- dente lite, 167. covenant for fixed allowance, in husband guilty of cruelty or adultery, 167. provision for children, 167, 168. in nullity suit, 167. in all cases, may now be ordered to age of twenty-one, 167, 168. not affected by previous agreement between parents, 168. right to, of wife who has obtained a protection order, 174. See Protection Orders. INDEX. 775 ALIMONY AND MAINTENANCE — continued. practice as to. Part II., 446 — 475. powers of Court as to, 446. meaning of terms, 446. distinction between dissolution and other suits, 446. alimony 'pendente lite , 446 — 463. time to apply for, 446. Divorce Pules, 446. petitions for alimony, forms of, 447 — 449. See Petition. service of petition and other pleadings, 449, 450. entering appearance by husband, 450. answers, forms of, 450 — 455. See Answer. further and fuller answer, 454. cross-examination of husband, production of books, &c., 455. reply and subsequent pleadings, 455. reply, form of, 455. rejoinder, 456. allotment of alimony, 456. how applied for, 456. position of wife as to cross-examination of husband, 457. appeal from registrar to judge, 457. appointment before registrar, how applied for, 458. notice of, to wife’s solicitor, 458. to opposite party, 458. counsel not heard on first appointment, 458. allotment made on first appointment, if possible, 458. practice as to allotment, where husband has appeared, 458. where husband has not appeared, 458. affidavit of service of petition for alimony, 459. evidence where husband has not appeared, 459. amount of, fixed by consent, 460. Court may direct payment of alimony to trustee for wife, 460. authority to pay to trustee, form of, 460, 461. may be filed after order for payment of alimony, 461. alimony ordered to be paid in full, 461. service of order, 461. enforcing payment of, 462. See Enforcing Decrees and Orders. varying order by increasing or reducing amount, 462. when payment commences, 462. when payment ceases, 462. alimony in suits in forma, pauperis, 462. order for payment of, form of, 463. permanent alimony, 463 — 467. rules of Court as to, 463, 464. practice where alimony pendente lite has been allotted and wife does not allege alteration in husband’s income, 464. ibid, where no alimony pendente lite has been allotted, 464. amount awarded, 464. when payment commences, 464. ceases, 464. amount arranged by consent, 464. defended and undefended cases, difference of practice in, 465. varying order, 465. enforcing order, 465. See Enforcing Decrees and Orders. form of order, 465. , 776 INDEX. ALIMONY AND MAINTENANCE — continued. permanent alimony — continued. increase of permanent alimony, petition for, form of, 465 — 467. See Petition. maintenance, 467 — 473. meaning of term, 467. application for, must be by petition, 467. powers of Court as to, 467, 468. provision for husband out of property of guilty wife, in suits for judicial separation, 468. reduction of amount, 468. varying settlements in nullity suits, 469. petition for, time for filing, 469. form of petition, 469. See Petition. affidavit in verification not required, 470. service of petition, 470. ibid, husband not appearing, 471. answer, time for filing, 471. by persons not parties served with petition as trus- tees, &c., 471. reply and subsequent pleadings, 471. allotment of maintenance by registrar, practice as to, 471. examination or cross-examination of husband or wife, 471. of witnesses, 471. report of registrar, 472. motion to confirm report, 472. amount fixed by consent, 472. order cannot be made until after decree absolute, though re- port may be prepared, 472. enforcing order for maintenance, 473. See Enforcing Decrees and Orders. provision for guilty wife, 473. provision for wife in suits for restitution, 473. fees and costs, 473 — 475. authority to trustee to receive alimony, &c. on behalf of wife (Form 91), 461. for further forms, see Petition; Answer; Affidavits; and Forms, List of. ALIMONY PENDENTE LITE. See Alimony and Maintenance. AMENDMENT OF PLEADINGS, practice as to, 328 — 336. See also Dissolution; Judicial Separation; Restitution of Conjugal Rights; Jactitation; Nullity. AMERICAN DIVORCE, 18—20. husband attempting to obtain American domicile for purpose of, 18, 19. husband really domiciled in America, 18, 19. granted on ground of impotence, 19. validity of, 211. ANSWER, practice as to, 341 — 353. paternity of child, question as to, raised by respondent, 146. time for filing, 341, 342. INDEX. 777 ANSWER — continued. relief by answer, 342. cross suits — consolidation, 343. affidavit in support, 352. to contain denial of collusion or connivance, 352. forms of, answer, generally, commencement of (Form 32), 344. for dissolution, by wife claiming relief (Form 33), 344 — 347. alleging various defences, but not claiming relief (Form 34), 347. by husband (Form 35), 348. claiming relief, adulterer cited by respondent, title of cause after (Form 37), 351. by co-respondent (Form 38), 351. to suit for restitution of conjugal rights (Form 68), 417. to suit for jactitation of marriage (Form 72), 422. to suit for nullity, undue publication of banns (Form 79), 433. impotency (Form 80), 434. bigamy (Form 81), 435. to petition for alimony 'pendente lite or permanent (No. 1), (Form 87), 450, 451. (No. 2), (Form 88), 451. to King’s Proctor’s plea (Form 97), 496. declaration of legitimacy (Form 98), 500 — 508. See also Affidavits; Dissolution; Judicial Separation; Restitution of Conjugal Rights; Jactitation; Nullity; Damages ; Custody and Access ; Alimony and Mainten- ance; Protection Orders; Variation of Settlements; Decree and Intervention ; Legitimacy Declaration Act; Costs. ANTE-NUPTIAL INCONTINENCE, no ground for dissolution, 25. nullity, 132. APPEAL, in matrimonial causes, 221, 223, 235, 248, 250, 275. practice as to, 525 — 539. in what cases appeal lies, 525 — 527. from justices to Divisional Court, 525. for re-hearing to Divisional Court, 525. from judge in Chambers to judge in Court, and from thence to Court of Appeal and (with leave) to House of Lords, 525. for new trial to Divisional Court and thence to House of Lords (without leave), 526. costs of wife on appeal to House of Lords as to new trial, 526. from other decisions to Court of Appeal, and thence to House of Lords, 526. what decisions of Court of Appeal give right to go to House of Lords without leave, 526. appeal as to costs, 526. former practice as to appeals generally, 526, 527. practice as to appeal under Judicature Act, 1881... 527. appeal to House of Lords against decree absolute, 528. applications for new trial or re-hearing previous to Judicature Act, 1890... 528. time for, 528. for re-hcaring still to Divisional Court, 529, 530. notice of motion for re-hearing, form, 106, 529. 778 INDEX. APPEAL — continued. effect of Judicature Act, 1890, s. 1, on motions for new trial, 529. duty of Court of Appeal when case heard in Court below by judge without jury, 530. enlarging time for appeal, 530. Court of Appeal may enter judgment instead of granting new trial, 531. regulations as to appeal by Judicature Act, 1894, s. 1...531, 532. Rules of Divorce Court not exhaustive, when do not meet par- ticular case, Rules of Supreme Court followed, 532. practice as to new trial in matrimonial causes, regulated by Ord. XXXIX., 532. practice as to new trial under Ord. XXXIX., 532, 533. must be by motion, 532. notice of motion, 532. time for service, 533. amending notice of motion, 533. forms of notice of appeal (Forms 107, 108), 533, 534. notice by respondent in lieu of cross appeal under R. S. C. Ord. LVIII., 534. time for such notice, 535. right of Respondent to continue cross appeal after original appeal withdrawn, 535. time for appeal under R. S. C. Ord. LVIII., 535. practice as to documents to be left at Divorce Registry for pur- poses of appeal, 535. practice at Royal Courts of Justice, after such documents have been forwarded there from Divorce Registry, 536. practice on appeal to Divisional Court of Divorce Division, 505. under R. S. C. Ord. LIX., 536 — 538. appeal from justices, practice in Divorce Registry, 536, 537. fees and costs, 536, 538. notice of appeal from justices, 537. power to extend notice of appeal, 538. forms, form of appeal (Form 107), 533. ibid, notice of (Form 108), 534. ibid, appeal from justices, notice of (Form 109), 539. See also New Trial and Re-hearing; Summary Juris- diction (Married Women) Act, 1895. APPEARANCE, 21, 22, 23. practice as to, 337 — 341, 396. forms relating to: — affidavit of search for appearance (Form 30), 338. entry of (Form 31), 339. ibid, under protest (Form 58), 396. See also Dissolution; Judicial Separation; Restitution of Conjugal Rights; Nullity; Custody and Access; Variation of Settlements; Decree and Intervention; Motions and Summonses. APPORTIONMENT OF DAMAGES, 135, 136. See Damages. ARREARS, of alimony and maintenance, 152, 153, 158, 162. See Alimony and Maintenance. INDEX 779 ATTACHMENT, does not now issue for disobedience to decree of restitution, 84. practice as to, 638 — 648. writ of (Form 129), 640. See also Forms, List of; Enforcing Decrees and Orders; Restitution of Conjugal Rights; Writs. BANKERS’ EVIDENCE ACT, 1879, practice under, 656. See Enforcing Decrees and Orders. BANKRUPTCY, of respondent, 136. of petitioner, where damages claimed, 137. See Damages; Costs. BANNS. See Nullity of Marriage. BESTIALITY. See Dissolution. BIGAMY, 27, 28, 154. See Dissolution; Alimony and Maintenance. BOASTING, of pretended marriage, 93, 94. See Jactitation. BOND, form of, for securing wife’s costs (Form 111), 553. registrar’s minute on deposit of, as security for wife’s costs (Form 112), 555. notice of sureties to bond for securing wife’s costs (Form 113), 556. registrar’s minute on cancelling (Form 115), 557. receiver’s bond (Form 134), 650 — 652. See also Affidavits. BROTHEL, visit of wife to, 270. See Evidence. BURDEN OF PROOF. See Evidence. CASE ON MOTION. See Practice as to Motions, 511 — 517. CAUSE LIST, 383. See Hearing or Trial. CHANCERY DIVISION, proceedings in, for protection of children, 139. concurrent jurisdiction, 190. See Custody and Access. CHANGE OF SOLICITOR, form of notice of (Form 116), 559. 780 INDEX, CHANNEL ISLANDS, foreign country in the English Divorce Court, 2. evidence of marriage when not in church, 262. CHARGING ORDER, to solicitor for costs, 236. practice as to, 655. See Enforcing Decrees and Orders; Costs. CHILD, born in wedlock, presumption as to legitimacy of, 255. See Evidence. CHILDREN. See Alimony and Maintenance; Custody and Access; Decree and Intervention; Restitution of Conjugal Rights; Sum- mary Jurisdiction (Married Women) Act, 1895; Variation of Settlements. CITATIONS, practice as to, 301 — 315. See also Dissolution; Judicial Separation; Restitution of Conjugal Rights; Jactitation; Nullity; Legitimacy De- claration Act, 1858. forms of, against wife (Form 9), 301. entries in, against respondent (Form 10), 303. ibid, against co-respondeint (Form 11), 303. husband (Form 12), 304. in dissolution, praecipe for (Form 13), 305. ibid, certificate of service of (Form 14), 307. affidavit of service of (Form 15), 307. order for substituted service of (Form 16), 310. abstract of, for advertisement (Form 17), 311. ibid, by respondent (Form 36), 350. in suit for judicial separation (Form 64), 409. restitution of conjugal rights (Form 69), 417. jactitation of marriage (Form 71), 422. nullity (Form 78), 431. declaration of legitimacy (Form 99), 509. CLERKS TO JUSTICES, duties of, 221. See Summary Jurisdiction (Married Women) Act, 1895. COHABITATION, what amounts to, 77, 220. wife returning pending proceedings, 221. previous demand to return to cohabitation in suits for restitu- tion, 87, 414, 415. presumption as to marriage, arising from, 262. See Dissolution; Judicial Separation; Restitution of Con- jugal Rights; Summary Jurisdiction (Married Women) Act, 1895; Evidence. COLLUSION, what amounts to, 43 — 47. See Costs; Decree and Intervention; Dissolution; Evidence. INDEX 781 COLONIAL DIVORCE, Court has no power to vary settlement after, 178. See Variation of Settlements. COLONIAL MARRIAGE, 266, 267, 268. See Evidence. COLONIAL STATES EVIDENCE ACT, 1907... 267. COMMISSION, for examination of witness out of jurisdiction, practice as to, 610—620. petitioner abroad, 254. form of (Form 119), 615—617. See Evidence; Forms, List of. COMMITTAL ORDER. See Attachment. COMMITTEE of lunatic may petition for dissolution, 26. See Dissolution. COMPROMISE OF SUIT, for dissolution, 30. for judicial separation, 64, 78. for restitution, 90. for nullity, 131. costs of carrying out, 250. See Dissolution; Judicial Separation; Restitution; Nullity; Costs. CONDONATION, what amounts to, 35 — 43. effect of, on damages, 138. CONDUCT CONDUCING TO ADULTERY, 58—60, 269. See Neglect or Misconduct. CONFESSIONS, value of, as evidence, 271, 272. CONFIDENTIAL COMMUNICATIONS by husband to wife and vice versa (16 & 17 Viet. c. 83, s. 3), 274. CONFRONTATION of parties, 261. CONNIVANCE, what is, 32 — 35, 269. CONSANGUINITY, as bar to marriage, 100, 101, 124, 125. prohibited degrees, table of, 277 — 279. See Nullity. CONSENT to marriage, want of, as ground for nullity, 125, 126. See Nullity. 782 INDEX. CONSOLIDATING CAUSES, practice as to, 367, 368. See Cross Petitions. CO-RESPONDENT, damages against, 133 — 137. death of, 137, 287. claiming paternity of child, 146. costs of and against, 228, 239 — 245. now competent witness, 252. knowledge of, that respondent was a married woman, burden of proof, 257. decree against, not admitted as evidence when he was respondent in subsequent suit, 274. practice as to, 285 — 287. foreign co-respondent, 286. See Dissolution; Damages; New Trial and Re-hearing; Costs. COSTS, 228—250. general observations, 228. discretion of Court, 228. wife’s costs, 228 — 239, 248 — 250. rule as to, 228, 229. wife successful, full costs, 229. wife failing in suit, amount fixed by registrar, at time of setting down for trial, 229. but sometimes allowed more, 229. full costs sometimes allowed to guilty wife, 229. two suits, deductions allowed to husband, 229. nullity, rule as to wife’s costs applies to suit for, 229. allowed amount ordered by registrar, 229, 230. unless solicitor guilty of misconduct, 230. husband has to give security for, 230. wife not liable for costs when unsuccessful, unless possessed of separate estate, 230. nullity suit, husband ordered to give security for, 230. wife petitioner for judicial separation, moving for leave to substitute petition for divorce, costs of motion, 230. wife evading service of decree for restitution, 230. restitution suit, Court declines to make usual order for wife’s costs where grounds for litigation were unreasonable, 230, 231. guilty wife having separate estate condemned in costs, 230, 231. nullity suit, next of kin petitioner, no order as to costs, 231. wife returning to cohabitation pending suit, 231. husband unable to pay costs, 231. guilty wife, successful in countercharges, 232. motion for new trial and bill of exceptions pending, 232. husband’s liability for wife’s extra costs at common law, 232. powers of Court as to condemning wife in costs, 232, 233. unfounded defence, 233. countercharges against husband, joint defence of wife and co-respondent, 233. new trial on application of wife, 233. appeal, 233. special jury, 233. staying proceedings, 233. INDEX 783 COSTS — continued. wife's costs — continued. second suit on diff erent grounds, 234. second trial, proceedings stayed until husband paid wife’s costs in first trial, 234. unsuccessful application to condemn wife in, 234. abortive trial, 234. wife allowed part of costs only, 235 . unfounded charges, 235. frivolous charges, 235. no appeal as to costs, 235. injunction to restrain husband from receiving legacy until orders as to wife’s costs obeyed, 235. appointment of receiver of amount standing in bank in hus- band’s name where money due for taxed costs, 236. solicitor’s lien, 236. charging orders by parties in favour of solicitor, 236. injunction against parting with property in favour of, re- fused, 236. solicitor must satisfy himself as to wife’s defence, 237. order to proceed in forma pauperis , payment of wife’s costs after, 237. husband dying pendente lite, order for costs against his executors, 237. Summary Jurisdiction Act, costs of proceedings under, 237, 238. of appeal to Divisional Court, 238. two trials, wife’s costs of, 238. position of isolicitor neglecting to get usual order for wife’s costs, 238. wife changing solicitor, proceedings stayed until first solici- tor’s costs dealt with, 238, 239. costs of wife in petition for variation of settlements after nullity suit, 248, 249. wife refusing to obey order of Court, husband excused from payment of her costs, 249. costs of and against co-respondent , 228, 239 — 245. usually condemned in, if aware respondent married woman, 228. not necessary to ask for costs against in petition, 239. condemned in part of costs only, 239. not condemned in, where wife profligate, 239. petitioner making improper claim for damages, co-respon- dent not condemned in costs, 239. discretion of Court, as to, 239. costs of two trials, 240. r not condemned though knowing respondent was married, 240. adultery with, condoned, 240. petitioner guilty of suspicious conduct, 240. adultery, 241. after decree nisi, 241. incestuous adultery, 241. condonation and connivance, 241. co-respondent guilty of indiscreet familiarity only, 241. petition dismissed, 241, 242. costs of varying marriage settlement, liability of co-respon- dent for, 242. partial order for costs against, 242. 784 INDEX, COSTS — continued. costs of and against co-respondent — continued. liable for costs of inquiry before registrar as to apportion- ment of damages, 242. condemned in, though wife acquitted of adultery, 243. not condemned in, though guilty of adultery, 243. ibid., not knowing respondent is a married woman, 243. successfully pleading to jurisdiction, after undue delay, 243. foreign co-respondent, 243. Scotch co-respondent, 244. co-respondent bankrupt, 244. cross suits, order for consolidation, position of co-respon- dent, 244. where admitted knowing respondent was married within a fortnight of first acquaintance, 243. liable for costs, where petitioner suing in forma pauperis, 245. but not for costs of the King’s Proctor, 245, 246. unless guilty of collusion with petitioner, 248. where decree rescinded, that part condemning co-respondent in costs falls with it, 247. bankrupt petitioner claiming damages, need not give security for co-respondent’s costs, 249. King's Proctor and other interveners, costs of, 228, 245—248. may be condemned in, 228, 245. stands in same position as any other intervener, 246. person charged by King’s Proctor intervened, condemned in costs, 246. but cannot recover against co-respondent, 246, 247. rescission of decree, 247. money paid into Court by husband to cover wife’s costs ordered to be paid out to King’s Proctor, 247. but Court will not order such money to be paid out to wife pending King’s Proctor’s intervention, 247. not practice to order husband to give security for wife’s costs of King’s Proctor’s intervention, 248. pauper litigant may be condemned in costs of King’s Proctor, 248. other interveners’ costs, 248. nullity suit, House of Lords made no order on appeal in, 2481 bankrupt petitioner claiming damages, security for costs, 249. variation of settlements, costs of petitions for, 249. allowed to be paid out of settled fund, 249. new trial, no security for costs, 250. wife disobeying order of Court, husband excused from payment of costs, 250. Legitimacy Declaration Act, costs of proceedings under, 250. compromise of suit, costs of carrying into effect, 250. practice as to, 540 — 603. powers of Court as to, 540. fixing fees, 540, 541. where order unduly obtained, 540. co-respondent applying for security where petitioner abroad, 540. ibid, may be condemned in, 540. costs in forma pauperis , 541, 542. INDEX. 785 COSTS — continued. practice as to — continued. solicitors’ bills subject to taxation, 541. King’s Proctor may be condemned in, 541. respondent may be heard as to who has appeared but not answered, 542. wife’s costs, 542 — 558. to setting down for trial, 542. further order for, 542, 543. solicitor should bring in bill to setting down speedily, and apply for further order at same time, 543. wife’s defence simple denial, affidavit as to bona fides, 543. “order to pay or secure,” meaning of, in what cases made, 544. suspending order for payment where husband disputes lia- bility, 544. what information to be supplied to registrar to fix amount to pay or secure, 544. bond for wife’s costs, notice to sureties, 544. application to increase amount of order where expenses likely to be greater than expected, or where trial has lasted longer, 544. service of order to pay or secure, 544. special endorsement on, 544. See Enforcing Decrees and Orders. staying proceedings, practice as to, 545. payment of money into and out of Court, 545 — 549. Supreme Court Funds Rules, 1894, as to, 545, 546, 549. forms under, 547 — 549. wife’s costs must be asked for at hearing, 549, 550. application for wife’s costs after trial, 549, 550. wife unsuccessful, costs of, 549, 550. successful, what costs can obtain immediate payment of, 549. except as above, no costs paid to wife until after decree absolute, 550. “ usual order for wife’s costs,” meaning of term, 550. balance in excess after payment of taxed costs, disposal of, 550, 551. order for costs forms part of decree, 551. practice as to payment of wife’s costs, 551. jury disagreeing, Court gave wife full costs, 551. no appeal against refusal of Court to give wife her costs, 551. summons for obtaining payment of wife’s costs already in- cured and depositing bond for further amount, form of, 551, 552. wife’s costs of commission, &c. to examine witness, 552. ibid, of petition for variation of settlements, 553. bond to secure wife’s costs, and registrar’s minute, practice as to, 553 — 556. bond to secure wife’s costs, form of, 553. registrar’s minute on deposit of, form of, 555. filing bond and minute, 555. approval or disapproval of, by wife’s solicitor, practice as to, 556—558. notice as to sureties to wife’s solicitor, 556. form of, 556. affidavit of justification of sureties to wife’s bond, form of, 556. D.M.C. 50 7 86 INDEX. COSTS — continued. wife’s costs — continued. practice as to, 556, 557. enforcing bond, 557. appeal from registrar to judge, 557. See Enforcing Decrees and Orders. cancelling bond, practice as to, 557. ibid, registrar’s minute on, form of, 557. change of solicitor , practice as to, 558, 559. notice of change of solicitors, form of, 559. taxation of costs , practice as to, 560 — 565. appointment for taxation, practice as to, 560, 561. parties not attending, 561. taxing between solicitor and client, 561. fees of taxation, by whom paid, 561. where one-sixth disallowed (practice as to), 561. order for payment of costs, ibid., 561, 562. petition dismissed on payment of costs, ibid., 562. scales of costs in Rules of Supreme Court made applicable to matrimonial causes, 562, 566, 567. documents that should be before registrar on taxation, 563. solicitors agreeing amount of costs, 563. objections to taxation, appeal to judge, 563. amounts usually disallowed on, 563. taxation in vacation, 563. retainers to counsel allowed on taxation, 563. some decisions as to costs, 563 — 565. (1) taxation, general principles of, 563. (2) solicitor should see proper amount fixed by registrar on further order, 564. (3) should file bill of costs to hearing early, 564. (4) asking for full costs of guilty wife, 564. (5) husband infant, taxing wife’s costs against guardian, 564. (6) money paid into Court by husband, primarily liable though co-respondent condemned in costs, 564. (7) wife’s costs of commission to examine witness, 564. (8) husband dying after paying in money for wife’s costs, 564. (9) costs of unfounded charges, 565. (10) number of witnesses allowed, 565. (11) fees of counsel for advising on answer, 565. (12) costs of appearance on motion, where application should have been made by summons, 565. (13) reviewing taxation, 565. (14) wife’s costs, King’s Proctor intervening, 565. (15) party cited under Legitimacy Declaration Act, may be condemned in costs, 565. fees to be taken by solicitors for their own use in matrimonial causes, list of, 568 — 571. ibid, persons other than solicitors, 572, 573. costs allowed on taxation, 316—319, 340, 360, 381, 382, 441, 473— 475, 574—683. petiiioner’s (wife) costs up to trial for judicial separation, 574—576. ibid, judicial separation, costs of, on examination of witness , before special examiner, 574 — 579. ibid, petition for divorce to decree nisi, 579 — 584. ibid, further costs to decree absolute, 584 — 588. INDEX. 787 COSTS — continued. costs allowed on taxation — continued. petitioner (husband), costs against co-respondent, order for leave to take children out of jurisdiction, respondent given her costs, 588 — 593. petitioner (wife), costs of order for permanent alimony and maintenance, 593, 594. ibid, costs of applications to enforce order for alimony, and petition to vary order, 594 — 596. ibid, costs of order dismissing motion, 596. costs of respondent (wife) to date of setting down cause for hearing or trial, 597. ibid, on petitioner’s application to file supplemental petition, 598. ibid, costs of application by petitioner to take children out of jurisdiction, 599, 600. fees to be taken by Court for matrimonial causes, 600 — 603. COURT, powers of. See Dissolution; Judicial Separation; Restitution; Jactita- tion; Nullity; Damages; Custody and Access; Alimony and Maintenance; Protection Orders; Variation of Settle- ments; Legitimacy Declaration Act; Summary Jurisdiction; Motions and Summonses; New Trial and Re-hearing; En- forcing Decrees and Orders; Costs. COURT OF APPEAL. See Appeal. CROSS PETITIONS, FORMS RELATING TO, notice and order to consolidate (Form 45), 367, 368. See Consolidation of Causes; Dissolution; Judicial Separa- tion; Restitution of Conjugal Rights; Nullity. CRUELTY, what amounts to, 57, 62 — 68. no answer to suit for nullity, 131. persistent (Summary Jurisdiction (Married Women) Act, 1895), 216. statement by wife to third persons as to, 256. See Judicial Separation; Nullity; Summary Jurisdiction (Married Women) Act, 1895; Evidence; Costs. CUSTODY AND ACCESS, 139—147. statutory provisions as to, 139 — 141. interim orders as to, 139, 140. provision in final decree, 139. power to direct proceedings in Chancery, 139. in suits for judicial separation, 139. orders after final decree, 139, 140. in suits for restitution, 140. Guardianship of Infants Act, 1886, powers of Court under, 140, 141. Summary Jurisdiction (Married Women) Act, 1895, powers as to children under, 141. interests of children first considered, next those of innocent party, 141. common law rights of father, 141. wife accused of adultery, 141, 142. discretion of Court, 142. access, without custody, 142. 50 ( 2 ) 788 INDEX. CUSTODY AND ACCESS — continued. interim order for, 'pendente lite , 142. intervention of third parties, 143. motive of applicant, 143. object to bring children up as Roman Catholics, 143. wife (petitioner) leaving child in custody of intimate friend, 143. neither parent fit to have custody, 144. custody given to grandfather, 144. attempt to get up charge against husband to obtain custody, 144. custody given to mother, but father allowed certain rights, 144. wife successful allowed custody as a rule, 144. disobedience to order, 144. custody given back to guilty husband on subsequent misconduct of wife, 145. custody of boys given to guilty father, and of girls to innocent mother, by House of Lords in Scotch case, 145. age at which right to custody ceases, 145, 146. ibid, no hard and fast rule, girl of sixteen, 146. no power to order custody where petition dismissed, 146. custody should be prayed for in petition, 146. paternity of child, question as to, must be raised on pleadings, 146. respondent alleging illegitimacy of child must prove non-access, 146. respondent not appearing, 147. agreement as to custody, 147. Irish Divorce Bill, 147. PRACTICE AS TO, 444, 445. if custody not prayed for in petition, separate petition must be filed, 444. father has common law right to custody, 444. order for custody, when asked for at hearing, 444. interim orders, 444. applications for custody heard by summons before judge in chambers, 444. access, before registrar in first instance, 445. time for taking out summons, 445. children not to be moved out of jurisdiction of Court without leave of judge on summons, 445. applications after final decree, 445. See Motions and Summonses. DAMAGES, 133—138. against adulterer (Mat. C. Act, 1857, s. 33), 133. must be awarded by jury, 133. petition for damages — only, 133. principles on which assessed, 134. co-respondent, means of, ought not to be considered, 134. ibid, except where he used his wealth to seduce the wife, 134. amount claimed must be put in petition, 135. amount agreed, 135. less amount accepted than assessed, 135. disposition of damages, 135, 136. examples of, how apportioned by Court, 135, 136. speedy payment of, ordered, 136. bankruptcy of petitioner, 136. of respondent, 137. petitioner guilty of adultery, 137. death of co-respondent, 137. INDEX. 789 DAMAGES — continued. decree rescinded, 137. separation deed, 137. previous intimacy with co-respondent, 137. respondent of weak intellect, adultery committed against her will, 138. wife earning money, measure of damages, 138. condonation, 138. assignee of damages, 138. See Costs. practice as to, 442, 443. petition limited to damages only, 442. prayer of, 442, 443. practice on such petition, 443. disposition of damages, 442, 443. usual order for damages to be paid into Court within fourteen days, 443. petitioner may apply for them to be paid to him, 443. discretion of Court, 443. application must be by summons before judge, 443. DECEASED WIFE’S SISTER, 125, 764. DECEASED WIFE’S SISTER’S MARRIAGE ACT, 764. DECREE AND INTERVENTION, 192—203. time for making absolute, 192. intervention, grounds for, 192. collusion, material facts concealed, 192, 196. King’s (late Queen’s) Proctor, 193. nullity, intervention in suits for, 193, 196. decree nisi, rescinded, 193. effect of order for new trial on, 193. decree absolute, marriage exists up to, 194. grounds for postponement of, 194. time shortened for pronouncing, 194, 195. collusive agreement as to suit and costs, 194. respondent and co-respondent both dying after decree nisi, 195. petitioner dead, attempt to revive suit, 195. decree absolute, application for, by respondent, 195. petitioner failing to apply for, 195, 196. intervention by King’s Proctor, grounds for, 196. time for, 197. papers sent to King’s Proctor — Court no power to compel him to issue his fiat — ease remaining in reserve list, 197. collusion, what is, 196. agreement to suppress material facts, amounting to, 197, 198. material facts not brought to notice of Court, 197. misconduct after decree nisi, 197, 198. King’s Proctor, changing prayer of petition to oust, 198, 199. allegations of, admitted by petitioner, 200. sending papers to, 200. issue by, and issues between parties heard at same time, 201. unreasonable delay alleged by, 202. intervention, by any person, 198. by or on behalf of parties charged with adultery, 198, 199, 200, 201, 202. unauthorized, 199. 790 INDEX. DECKED AND INTERVENTION — continued. intervention, as to custody of children, 200. in suit for judicial separation, 203. nullity, 193, 196. application by petitioner to rescind decree nisi, 202. practice AS TO, Part II., 353 — 355, 487 — 497. decrees, practice as to, 487 — 492. decrees nisi, dissolution and nullity, 487. final decrees, judicial separation, restitution of conjugal rights, and jactitation of marriage, 487. all decrees drawn up in Divorce Registry, 487. decrees, formal commencement of, 487. decree nisi for dissolution, contents of, 487, 488. nullity, contents of, 488. final decree for judicial separation, contents of, 488, 489. restitution of conjugal rights, contents of, 489. jactitation of marriage, contents of, 489. decrees nisi signed by registrar, 489. decrees, when service of, required, 489. documents handed in at hearing or trial, custody of, when handed out, 490. decrees, how made absolute, 490 — 492. custody of pleadings and other documents, copies of, &c., practice as to, 492. intervention by alleged adulteress, 353 — 355. King’s Proctor and other interveners, 492 — 497. who may intervene besides King’s Proctor, 492, 493. King’s Proctor can intervene without leave, 493. other interveners must enter appearance and obtain leave to intervene, and may have to give security for costs, 494. pleadings in intervention, 494, 495. affidavits, filing and service of, 494. answer, reply and subsequent pleading, time for filing, 494, 495. hearing issues raised, 495. King’s Proctor’s plea, form of (Form 96), 495, 496. answer to King’s Proctor’s plea, form of (Form 97), 496. setting down cause for hearing, 496. trial of issues by jury, how obtained, 496. no answer filed, or intervention successful, petition dismissed, and decree rescinded, 497. King’s Proctor must give particulars, and may be condemned in costs, 497. King’s Proctor allowed to amend pleading on payment of costs of amendment, 497. order rescinding decree, 497. fees and costs, 497. DECREES NISI, ABSOLUTE AND FINAL. See Decree and Intervention. DEED OF SEPARATION, as bar in suit for judicial separation must be specially pleaded in answer, 418. See also Dissolution; Judicial Separation; Nullity; Resti- tution of Conjugal Rights; Variation of Settlements. Index. 791 DEFENCES. See Dissolution ; Judicial Separation; Destitution of Con- jugal Rights; Nullity; Damages; Costs. DEMAND, to return to cohabitation in suits for restitution, 414, 415. DESERTION, what amounts to, 18, 19, 57, 69 — 78. by non-compliance with decree for restitution, 85 — 88. for purpose of obtaining a protection order, 173. under Summary Jurisdiction (Married Women) Act, 1895... 221, 222 . DISCOVERY AND INSPECTION, 258. PRACTICE AS TO, Part II., 631 — 637. forms in, notice to produce documents (Form 128), 634. See Forms, List of; Evidence. DISSOLUTION OF MARRIAGE, 1, 24—60. English domicil necessary to found jurisdiction in suits for, 3. grounds for, 24. by Act of Parliament before 1858... 24. in Ireland at present time, 24. principles of Court, 25, 26. bound by principles of Ecclesiastical Courts in cases other than dissolution, 25. Mat. C. Act, 1857... 25. divorce a mensd et thoro , 25. non-consummation, 25. impotence, 25. ante-nuptial incontinence, 25. adultery, as ground for, must be before date of petition, 26. delay in filing petition, 26. petition for, four years after decree for judicial separation, 26. want of means excuses delay, 26. lunatic, petition by, 26. committee may maintain suit, 26. guardian ad litem , 26. where substantial dispute as to lunacy, 26. wife petitioner, 27. incestuous adultery, definition of, 27. may be committed with illegitimate as well as legitimate relations, 27. bigamy, meaning of, in Divorce Court, 27. must be coupled with adultery, as ground for dissolution, 27. adultery must be with same woman, 28. criminal offence of bigamy distinguished, 28. revival of condoned bigamy by subsequent adultery, 28. proof of conviction for, not sufficient in Divorce Court, 28. recent cases as to, 28. rape, ground for, on wife’s petition, 28. decree granted where wife guilty of adultery, 28. where husband convicted in criminal Court of indecent assault only, 29. sodomy ground for, on wife’s petition, 29. bestiality ground for, on wife’s petition, 29. adultery coupled with cruelty ground for, on wife’s petition, 29. must be such cruelty as, would have (entitled her to divorce a mensd et thoro in Ecclesiastical Courts, 29. 792 INDEX. DISSOLUTION OF MARRIAGE — continued. decisions of Ecclesiastical Courts binding on this point, 29. wife having obtained judicial separation on ground of cruelty, can obtain dissolution for subsequent adultery without further evidence, 29. adultery coupled with desertion, ground for dissolution on wife’s petition, 30. desertion must be for two years or upwards, 30. must be complete before filing petition, 30. desertion, statutory under Mat. C. Act, 1884, s. 5... 30. compromise of suit for dissolution, 30. defences in dissolution, 30, 31. absolute: (1) denial of facts charged; (2) connivance; (3) con- donation; (4) collusion, 31. discretionary: (1) adultery of petitioner ; (2) unreasonable delay ; (3) cruelty by respondent; (4) desertion by respondent; (5) wil- ful neglect or misconduct, 31. denial of facts, 31. may be of one or more facts, as adultery, or the marriage, 31. practice of Ecclesiastical Court where marriage denied, 31. connivance, what is, 32 — 35. what was in Ecclesiastical Courts, 32, 33. something more than mere inattention, 32. or coarse, brutal behaviour or bad language, 32. must be corrupt, 32. passive acquiescence, 32. extreme negligence, 32. but must in every case be intention that guilt should ensue, 32. mere imprudence or error of judgment, 33. acts must have tendency to cause adultery, 33. introducing wife to loose woman, 33. connivance with adultery other than charged, 33. what amounts to, since Mat. C. Act, 1857... 34. may be proved by express language or inference from facts, 34. husband not interfering, 34. agreement to live separate, 34. wife consenting to husband’s adultery for sake of money allowance, 34. by authorized agent, petitioner bound by acts of, 34. but not by act of unauthorized person, 35. condonation, what is, 35 — 43. question of fact, not law, 35. not mere forgiveness, 35. must be complete obliteration of past, 35. is a general principle of law, 35. when pleaded by wife, 35 — 43. by husband, 38 — 43. in Ecclesiastical Courts, 35 — 39. facility of, 36. mere suspicion, 37. knowledge of former adultery, 36. refusing to listen to evidence, 37. kind of forgiveness necessary, 37. offer to forgive, 37. remaining in house with wife after discovery of adultery, 37. onus on husband to show they did not sleep together, 37. mere residence under same roof, 37. INDEX. 793 DISSOLUTION OF MARRIAGE — continued. condonation, what is — continued. by bringing suit for restitution, 38. revival after condonation, 39. slighter offence will revive, 39. need not be ejusdem generis, 39. cruelty revived by adultery, &c., 40. when by subsequent cruelty, 39. when not by desertion, 39. adultery revived by cruelty, 39. what is condonation since Mat. C. Act, 1857... 40 — 43. must be with knowledge of adultery, 40. complete re-instatement, 40. presumption from continued cohabitation, 40. revival, 40, 41. of adultery by cruelty, and vice versa , 40. by subsequent adultery, must be by actual adul- tery, not familiarities short of adultery (per H. of L.), 41. condoned cruelty revived by slighter acts, 39, 41. as subsequent threats, 41. or habitual drunkenness, 41. condonation after decree nisi, 42. condition precedent, 42. by deed, 42. covenant not to sue for past offences, 42. no revival, 43. condonation as answer to husband’s claim for damages, 43. collusion, what is, 43 — 47. in Ecclesiastical Courts, 43, 44. bond by husband not to oppose divorce, 44. solicitor employed by adulterer, 44. evidence of husband’s misconduct suppressed, 44. contract as to action of crim. con., 44. wife attending for identification, 44. collusion must be between petitioner and one of respondents, 44. since Mat. C. Act, 1857... 44 — 47. must be some sort of agreement between parties, 45. money paid to party to assist in identification, 45. husband asking wife not to oppose, 45. collusive residence in Scotland to acquire domicil, 45. agreement to withhold evidence, 45. to commit adultery, 46. to conceal fact of condonation, 46. irregularities by solicitor, 46. agreement, collusive, not concealed by parties, but terms of stated to Court by counsel, 46. discretionary defences in dissolution (Mat. C. Act, 1857, s. 31), 47. adultery by petitioner, discretion of Court, 47 — 54. regulated discretion, 47. committed in ignorance of facts, 47. thinking wife dead, 48. or of law, 48. marriage after decree nisi, 48. or where parties thought agreement to separate sufficient for divorce, 49. 794 INDEX. DISSOLUTION OF MARRIAGE — continued. collusion, what is — continued. adultery committed in consequence of violence or threats of husband, 49. wife leading life of prostitute for husband’s benefit, 49. adultery condoned by respondent, 49, 50. decree refused in every case where party seeking relief had committed adultery for many years, 50. granted for rape in spite of petitioner’s adultery, 50. adultery by petitioner before or after adultery complained of, no distinction, 50, 51. single act of, decree refused, 51. contradictory verdicts as to petitioner’s adultery, decree in spite of, 51. decrees in spite of petitioner’s adultery where husband con- victed of criminal assault, 51, 52. ditto, where adultery of petitioner is directly caused by the misconduct of the respondent, 51, 52. but parties seeking relief must themselves bring their own misconduct to knowledge of Court, 53. to obtain decree adultery of party seeking relief must have been caused directly by conduct of respondent, 52, 53. petitioner guilty of cruelty, decree in spite of, 54. in such cases petitioner usually put on terms to make some provision for wife, but no general rule, 54. unreasonable delay, what is, 54 — 57. Mat. C. Act, 1857, s. 31... 54. Ecclesiastical Court’s view of, 54. may be explained, 55. sufficient explanations, 55. wife holding back to avoid public scandal, 55. misapprehension of law, 55. want of means, 55. wife prevented by deed from commencing sooner, 56. wife in lunatic asylum for some years, 57. cruelty, what is, 57. See Judicial Separation. desertion, what is, 57. See Judicial Separation. neglect or misconduct, what is, 57 — 60. must conduce to respondent’s fall from virtue, 57, 58. mere carelessness does not amount to, 57. husband leaving home for good reasons, 58. conduct conducing to adultery, what is, 58. husband exposing wife to temptation, 58. tacit acquiescence, 58. conviction of wife, 59. wife’s agent inducing husband to commit adultery, 59. husband leaving wife because she ran him into debt, 59. making her allowance, but refusing to see her, 59. wife refusing marital intercourse, 60. husband in service, away for long period with master, 60. lunacy of respondent, 60. practice in suits for, Part II., 285 — 404. commenced by petition, 285. co-respondent, 285 — 287. petition, 287 — 297. affidavit in support of, 298 — 300. INDEX. 795 DISSOLUTION OF MARRIAGE — continued. practice in suits for, Fart II. — continued. citations, 301 — 315. fees and costs, 315 — 319. guardian ad litem , 319 — 328. amendment of pleadings, 328 — 336. appearance, 337 — 341. answer, 341 — 353, 355 — 357. intervention, 353 — 355. reply and subsequent pleadings, 357 — 361. particulars, 361 — 367. cross petitions and consolidating causes, 367, 368. hearing and trial, 368 — 388. abatement of suit, 388, 389. suing in -forma 'pauperis , 389 — 395. new rules in forma pauperis in High Court, 767. act on petition, 395 — 397. appearance under protest, 395 — 397. See also Judicial Separation; Petition; Affidavit; Cita- tion; Guardian ad Litem; Amendment of Pleadings; Respondent; Co-respondent; Appearance; Answer; Intervention ; Reply and Subsequent Pleadings ; Notices; Particulars; Cross Petitions; Consolidating Causes; Hearing or Trial; Abatement of Suit; Forma Pauperis, Suing In; Act on Petition; Fees; Costs. DIVISIONAL COURT, of Probate, Divorce, and Admiralty Division, 223. See also New Trial and Re-hearing; Appeal. DIVORCE. See Dissolution of Marriage. DIVORCED WOMAN, domicil of, 7. DOMICIL, what is, 4 — 22, 206 — 208. See Jurisdiction; Dissolution; Judicial Separation; Resti- tution of Conjugal Rights; Jactitation; Nullity. DUM SOLA ET CASTA CLAUSE, 163. See Alimony and Maintenance. DURESS, as ground for nullity, 125, 126. See Nullity. ECCLESIASTICAL COURTS, rules and principles of, 25, 29, 31 — 33, 35 — 39. principles and practice of, still binding on Divorce Court in all matrimonial suits except dissolution of marriage, 61, 68, 95. cruelty, what amounted to in, 62, 63. desertion, ibid., 69. evidence, how taken in, 251. order for confrontation, 260, 261. See Judicial Separation; Restitution of Conjugal Rights; Jactitation; Nullity; Alimony and Maintenance; Evi- dence. 796 INDEX. ELEGIT. See Writs. ENFORCING DECREES AND ORDERS, practice as to, 638 — 656. attachment and other writs, how applied for, 638, 639. ibid, how prepared, 639. garnishee order and receiver, 639. committal order, 639. writ of attachment, form of (Form 129), 640. -fieri facias, form of (Form 130), 641. sequestration, form of (Form 131), 642. elegit, form of (Form 132), 643. writs of attachment, fieri facias, sequestration and elegit, praecipes for, forms of (Form 133), 644. endorsement of any order it is proposed to enforce by execu- tion, 645, 646. personal service of order necessary before applying for attachment, 646. further practice as to attachment down to release from cus- tody, 646—648. writ of sequestration, further practice as to, 648. elegit, further practice as to, 646. committal orders for non-payment of sums of money ordered to be paid by Court, practice as to, under Bankruptcy Act, 1883... 648— 650. appointment' of receiver, practice as to, under R. S. C., Ord. L., 648—653. receiver’s bond, form of (Form 134), 648 — 651. garnishee order, practice as to, 653 — 655. charging order, practice as to, 655, 656. Bankers’ Evidence Act, 1879, order to inspect banker’s books under, practice as to, 656. enforcing order after ten years, 656. bond for wife’s costs against husband, in suit for judicial separation, 656. ESTOPPEL, plea of (Form 42), 358. EVIDENCE, 251— 276. in Ecclesiastical Courts, how taken, 251. mode of taking evidence since Mat. C. Act, 1857... 251. parties not competent witnesses at time of passing Mat. C. Act, 1857.. .251, 252. examination of petitioner by order of the Court, under sect. 43 of the Mat. C. Act, 1857... 252. husband and wife made competent witnesses as to cruelty and desertion by Mat. C. Act, 1859... 252. parties and their husbands and wives made competent witnesses as to adultery, but not liable to give evidence as to their own adultery, by Evidence Act, 1869... 252. general rules and principles of, 253. right to begin, 253. burden of proof on respondent alleging nullity, 253. in consolidated suits, 253. King's Proctor and other interveners, rights of, as to examination, cross-examination, and reply, 253. intervener alleging collusion, 254. INDEX . 797 E VIDEN CE — continued. practice as to calling parties, 254. evidence of petitioner, 254. decree nisi pronounced without petitioner’s evidence, 254. evidence of respondent and co-respondent, 254. if petitioner abroad, or compelled to go abroad, practice is to take his evidence on commission or by affidavit, 254. usual result of parties refusing to answer questions as to their guilt, 254. liability of witness to answer question tending to show his or her adultery in proceedings for variation of settlements, 255. on issue as to legitimacy, 255. party, uncorroborated evidence of, 255. party giving evidence as to adultery, liability of, to answer further questions, 255. wife’s paramour, evidence of, as to legitimacy of child born in wedlock, 255. husband, ibid., 255. presumption as to legitimacy of child born in wedlock, 255, 256. husband making charges of pre-marital misconduct against wife, evidence of, 256. adultery committed after date of petition, evidence of, 256. statements of wife to third persons as to husband’s cruelty, ad- missibility of, 256. knowledge of co-respondent that respondent was married, burden of proof, 257. nullity suit on ground of impotence, inference from non-con- summation, 257. alimony, petition for, right of wife to cross-examine husband as to means, 257. cases tried wholly on affidavits, '257. cases verified partly by affidavit, 257, 258. where witnesses at a distance, 257, 258. where bigamy committed in America, 258. discovery and inspection, 258. interrogatories, 258. ought not to be granted against a party to prove his or her adultery, 258. identification of parties in matrimonial suits, 259 — 261, 272. in nullity suit, 259. best evidence must be got, 259. how best to identify, 259. secondary evidence, when admitted, 259, 260. photographs, 259, 260. corroboration of, 259, 260. handwriting, 260. confrontation, in Ecclesiastical Courts, 260. in Divorce Court, 261, proof of marriage, 261 — 268. when English, 261. when foreign, 261 — 268. Channel Islands (not in church), 262. what evidence necessary, 261. presumptive proofs, reputation, 262, 264. cohabitation, 262, 264. Gretna Green marriage, 262. presumption as to registration of chapel and presence of registrar, 262. 796 INDEX. ELEGIT. See Writs. ENFORCING DECREES AND ORDERS, practice as to, 638 — 656. attachment and other writs, how applied for, 638, 639. ibid, how prepared, 639. garnishee order and receiver, 639. committal order, 639. writ of attachment, form of (Form 129), 640. fieri facias, form of (Form 130), 641. sequestration, form of (Form 131), 642. elegit, form of (Form 132), 643. writs of attachment, fieri facias, sequestration and elegit, praecipes for, forms of (Form 133), 644. endorsement of any order it is proposed to enforce by execu- tion, 645, 646. personal service of order necessary before applying for attachment, 646. further practice as to attachment down to release from cus- tody, 646—648. writ of sequestration, further practice as to, 648. elegit, further practice as to, 646. committal orders for non-payment of sums of money ordered to be paid by Court, practice as to, under Bankruptcy Act, 1883... 648— 650. appointment of receiver, practice as to, under R. S. C., Ord. L., 648—653. receiver’s bond, form of (Form 134), 648 — 651. garnishee order, practice as to, 653 — 655. charging order, practice as to, 655, 656. Bankers’ Evidence Act, 1879, order to inspect banker’s books under, practice as to, 656. enforcing order after ten years, 656. bond for wife’s costs against husband, in suit for judicial separation, 656. ESTOPPEL, plea of (Form 42), 358. EVIDENCE, 251— 276. in Ecclesiastical Courts, how taken, 251. mode of taking evidence since Mat. C. Act, 1857... 251. parties not competent witnesses at time of passing Mat. C. Act, 1857.. .251, 252. examination of petitioner by order of the Court, under sect. 43 of the Mat. C. Act, 1857... 252. husband and wife made competent witnesses as to cruelty and desertion by Mat. C. Act, 1859... 252. parties and their husbands and wives made competent witnesses as to adultery, but not liable to give evidence as to their own adultery, by Evidence Act, 1869... 252. general rules and principles of, 253. right to begin, 253. burden of proof on respondent alleging nullity, 253. in consolidated suits, 253. King’s Proctor and other interveners, rights of, as to examination, cross-examination, and reply, 253. intervener alleging collusion, 254. INDEX . 797 EVIDENCE — continued. practice as to calling parties, 254. evidence of petitioner, 254. decree nisi pronounced without petitioner’s evidence, 254. evidence of respondent and co-respondent, 254. if petitioner abroad, or compelled to go abroad, practice is to take his evidence on commission or by affidavit, 254. usual result of parties refusing to answer questions as to their guilt, 254. liability of witness to answer question tending to show his or her adultery in proceedings for variation of settlements, 255. on issue as to legitimacy, 255. party, uncorroborated evidence of, 255. party giving evidence as to adultery, liability of, to answer further questions, 255. wife’s paramour, evidence of, as to legitimacy of child born in wedlock, 255. husband, ibid., 255. presumption as to legitimacy of child born in wedlock, 255, 256. husband making charges of pre-marital misconduct against wife, evidence of, 256. adultery committed after date of petition, evidence of, 256. statements of wife to third persons as to husband’s cruelty, ad- missibility of, 256. knowledge of co-respondent that respondent was married, burden of proof, 257. nullity suit on ground of impotence, inference from non-con- summation, 257. alimony, petition for, right of wife to cross-examine husband as to means, 257. cases tried wholly on affidavits, '257. cases verified 'partly by affidavit, 257, 258. where witnesses at a distance, 257, 258. where bigamy committed in America, 258. discovery and inspection, 258. interrogatories, 258. ought not to be granted against a party to prove his or her adultery, 258. identification of parties in matrimonial suits , 259 — 261, 272. in nullity suit, 259. best evidence must be got, 259. how best to identify, 259. secondary evidence, when admitted, 259, 260. photographs, 259, 260. corroboration of, 259, 260. handwriting, 260. confrontation, in Ecclesiastical Courts, 260. in Divorce Court, 261. proof of marriage, 261 — 268. when English, 261. when foreign, 261 — 268. Channel Islands (not in church), 262. what evidence necessary, 261. presumptive proofs, reputation, 262, 264. cohabitation, 262, 264. Gretna Green marriage, 262. presumption as to registration of chapel and presence of registrar, 262. 800 INDEX. E VIDEN CE — continued. examinations — continued. form of order for (Form 121), 625, 626. evidence, how taken in matrimonial causes, 626, 627. subpoenas, practice as to, 627 — 630. to be on parchment, 627. fresh subpoenas, 627. subpoena ad testificandum, and praecipe for, forms of (Forms 122, 123), 627, 628. subpoena duces tecum , and praecipe for, forms of (Forms 124, 125), 629, 630. sealing, stamping, and further practice as to, 630. discovery and inspection , practice as to, 631 — 637. summons for, form of (Form 126), 631, 632. affidavit as to dcocuments (Form 127), 632, 633. notice to produce and admit, practice as to, and form of (Form 128), 634. interrogatories, practice as to, 634 — 637. R. S. C., Ord. XXXI., summary of, and forms of interroga- tories and answer, 635 — 637. hearing evidence in camera , 637. See also Dissolution; Judicial Separation; Restitution of Conjugal Rights; Nullity; Legitimacy Declaration Act, 1858; Summary Jurisdiction (Married Women) Act, 1895; New Trial and Re-hearing; Appeal. EXAMINATION OF WITNESS WITHIN JURISDICTION, practice as to, 623 — 637. form of order for examination (Form 121), 625, 626. See Evidence. FAMILIARITIES, short of adultery, co-respondent guilty of, liability of for costs, 241. See Costs. FATHER. See Custody and Access. FEES, 315—319, 327, 328, 336, 340, 360, 366, 367, 376, 441, 473—475, 479, 517, 536, 538, 568—603. See also Costs. FIERI FACIAS. See Writs. FOREIGN, meaning of term in Divorce Court, 2. FOREIGN DIVORCE, no power to vary settlement after, 178. See Jurisdiction; Dissolution; Variation of Settlements. FOREIGN CO-RESPONDENT, 286. FOREIGN MARRIAGE, proof of, 261 — 268. See Evidence. INDEX. 801 FOREIGNERS, Marriage with Foreigners Act, 1906... 759. FORMA PAUPERIS, SUING IN, costs, 237, 245, 248. practice as to, Part II., 389 — 395. new rules, 389, 767. forms relating to, case for and opinion of counsel (Form 55), 391, 392. ibid, endorsement of (Form 56), 392. See also Affidavits; Forms, List of; Costs. FORMS, LIST OF, Part II., (1) Petition for dissolution, commencement of, 288. (2) ibid, by husband for dissolution, simple form of, 290. (3) ibid, by wife for dissolution, containing various charges, 292. (4) ibid, by wife alleging cruelty in general terms, 295. (5) ibid, by husband for dissolution, with claim for damages, 295. » (6) ibid, dissolution, endorsement of, 297. (7) Affidavit verifying petition, 298. (8) ibid, endorsement of, 299. (9) Citation in dissolution by husband, 301. (10) ibid, entries in against respondent, 303. (11) ibid, co-respondent, 303. (12) ibid, by wife, 304. (13) ibid, praecipe for, 305. (14) ibid, certificate of service of, 307. (15) ibid, affidavit of service of, 307. (16) ibid, order for substituted service of, 308 — 310. (17) ibid, abstract of for advertisement, 311. (18) ibid, affidavit of advertisement of abstract of, 313. (19) ibid, affidavit of service of, after order for substituted ser- vice, 314. (20) Guardian, election of, by petitioner, 320. (21) ibid, by respondent, 322. (22) ibid, acceptance of guardianship, 323. (23) ibid, petition, title of, 325. (24) ibid, title of cause after petition filed, 326. (25) ibid, next of kin, renunciation of guardianship by, 326. (26) ibid, order assigning, 327. (27) Affidavit in support of application for leave to amend plead- ing, 329, 330. (28) Petition, supplemental, form of, 332. (29) Affidavit in support of supplemental petition, 334. (30) Affidavit of search for appearance, 338. (31) Appearance, entry of, 339. (32) Answer, commencement of, 344. (33) ibid, by wife for petition for dissolution, claiming relief, 344. (34) ibid, alleging various defences, but not claiming relief, 347. (35) ibid, by husband, 348. (36) Citation by respondent, 350. (37) Answer claiming relief, adulterer cited by respondent, title of cause, 351. (38) Answer by co-respondent, 351. (39) Affidavit in support of answer, 352. (40) Title of cause, intervention by alleged adulteress, 354. (41) Reply (or replication), 358. D.M.C. 51 802 INDEX. FORMS, LIST OF — continued. (42) Estoppel, plea of, 358. (43) Particulars, order for, 363. (44) ibid, furnished pursuant to order, 364. (45) Cross petitions, notice and order to consolidate, 367. (46) Affidavit of search for appearance, 371. (47) Affidavit of search for answer, 372. (48) Affidavit of search for reply, 372. (49) Hearing or trial, registrar’s certificate that pleadings are in order, 373. (50) ibid, praecipe setting down cause for, 375. (51) ibid, notice of having set down cause for, 375. (52) ibid, questions of fact for jury, 379. (53) ibid, notice of removing cause from reserved list, 385. (54) ibid, notice of death of petitioner, 389. (55) Suing in forma 'pauperis, case for counsel, 391. (56) ibid, form of endorsement of, 392. (57) Affidavit as to means, in pauper cause, wife applicant, 393. (58) Appearance under protest, 396. (59) Act on petition, 398. (60) Act on petition, 400. Answer, 401. Reply, 402. Conclusion, 403. (61) Judicial separation, petition for, by husband, form of, 406. (62) ibid, by wife, 407. (63) Affidavit verifying petition for judicial separation, 408. (64) Citation by a husband or wife for a judicial separation, 409. (65) (A duplicate eliminated in final correction for press. — Ed.) (66) Petition for reversal of a decree of judicial separation, 412. (67) Petition for restitution of conjugal rights, 415. (68) Answer to petition for restitution of conjugal rights, 417. (69) Citation in suit for restitution of conjugal rights, 417. (70) Petition for jactitation of marriage, 420. (71) Citation in suit for jactitation of marriage, 422. (72) Answer to suit for jactitation of marriage, 422. (73) Petition for nullity (undue publication of banns), 425. (74) ibid, (impotency, &c.), 427. (75) ibid, (insanity), 428. (76) ibid, (bigamy), 429. (77) ibid, (affinity), 430. (78) Citation in suit for nullity, 431. (79) Answer to petition for nullity (undue publication of banns), 433. (80) ibid, (impotence, &c.), 434. (81) ibid, (bigamy), 435. (82) Medical inspectors in suit for nullity (impotence), oath to, 438. # (83) ibid, in suit for nullity, registrar’s minute of swearing and identification, 438. (84) Petition limited to damages only, 442. (85) Petition for alimony, pendente lite, or permanent alimony (No. 1), 447. (86) ibid, pendente lite or permanent (No. 2), 448. (87) Answer to petition for alimony (No. 1), 450. (88) ibid. (No, 2), 451. (89) Reply (alimony), 455. (90) Affidavit of service of petition for alimony, 459. (91) Alimony, authority to wife’s trustee to receive, 461. INDEX. 808 FORMS, LIST OF — continued. (92) Petition for increase of permanent alimony, 465. (93) Petition for maintenance, 469. (94) Protection order, application for, 477. (95) Petition for variation of settlement, 480. (96) King’s Proctor’s plea, 495. (97) Answer to King’s Proctor’s plea, 496. (98) Petition and answers in suit for declaration of legitimacy, 500. (99) Citation in suit for declaration of legitimacy, 509. (100) Motion, notice of, 513. (101) ibid, case on, 514. (102) Summons before judge, general form of, 519. (103) ibid, registrar, 519. (104) Summons for appointment of medical inspectors (nullity), 520. (105) Affidavit of service and non-attendance, 522. (106) Motion for re-hearing, notice of, 529. (107) Appeal, 533. (108) ibid, notice of, 534. (109) ibid, from justices, 539. (110) Summonses for payment of wife’s costs already incurred and for depositing bond for further amount, 552. (111) Bond for securing wife’s costs, official form of, 553. (112) ibid, registrar’s minute on deposit of, 555. (113) ibid, notice of sureties to, 556. (114) Affidavit of justification of sureties, 556. (115) Bond, registrar’s minute on cancelling, 557. (116) Change of solicitors, notice of, 559. (117) Affidavit, general form of jurat, 606. (118) ibid, in support of summons for commission, &c. to examine witnesses, 612. (119) Commission for examination of witnesses, 615. (120) Requisition or request for commission, 621. (121) Examination of witness, 625. (122) Subpoena ad testificandum, 627. (123) ibid, praecipe for, 628. (124) Subpoena duces tecum , 629. (125) ibid, praecipe for, 630. (126) Summons for discovery and inspection, 631. (127) Affidavit as to documents, 632. (128) Notice to admit documents, 634. (129) Writ of attachment, 640. (130) ibid, fieri facias, 641. (131) ibid, sequestration, 642. (132) ibid. . elegit, 643. (133) Writs of attachment, fieri facias , sequestration and elegit, praecipe for, 644. (134) Bond, receiver, 650. GARNISHEE ORDER, practice as to, 639 — 641. See Enforcing Decrees and Orders. GRANDFATHER, of husband or wife may petition for nullity, 104. custody of child given to, 143, 144. 51 ( 2 ) 804 INDEX. GRANDFATHER — con tinned . petition for declaration of legitimacy of, 210. See Nullity; Custody and Access; Legitimacy Declaration Act, 1858. GRANDMOTHER, of husband or wife may petition for nullity, 104. See Nullity. GREEK MARRIAGES ACT, practice under, 498, 499. See Legitimacy Declaration Act, 1858. GRETNA GREEN MARRIAGE, 211. GUARDIAN AD LITEM, 22, 26. practice as to, Part II., 319 — 328. forms relating to, election of, by petitioner (Form 20), 320. ibid, respondent (Form 21), 322. acceptance of guardianship (Form 22), 323. petition of minor suing by guardian, title of (Form 23), 325. ibid, of cause after petition filed (Form 24), 326. renunciation of guardianship by next of kin (Form 25), 326. order assigning guardian (Form 26), 327. See also Dissolution; Judicial Separation; Restitution of Conjugal Rights ; Alimony and Maintenance; Variation of Settlements; Decree and Intervention. GUARDIANSHIP OF INFANTS ACT, 1886... 140. HABITUAL DRUNKARD, protection for wife or husband of, 216. See Summary Jurisdiction (Married Women) Act, 1895. HEARING OR TRIAL, practice as to, 368 — 388. forms relating to, affidavit of search for appearance (Form 46), 371. for answer (Form 47), 372. for reply (Form 48), 372. of registrar’s certificate that pleadings are in order (Form 49), 373. ibid, praecipe setting down cause for hearing or trial (Form 50), 375. ibid, notice of (Form 51), 375. ibid, questions of fact for jury (Form 52), 379. ibid, notice of removal of cause from reserved list (Form 53), 385. ibid, notice of death of party (Form 54), 389. See also Dissolution; Judicial Separation; Restitution of Conjugal Rights; Jactitation; Nullity; Damages; Decree and Intervention ; Legitimacy Declaration Act; Costs. HINDU, no personal incapacity, 21, INDEX, 805 IDENTIFICATION, 259—261, 272. See Evidence. IMPOTENCE, 25, 81, 128—130, 273. See Dissolution; Judicial Separation; Nullity; Evidence. IN CAMERA , cause heard in, power of Court to order, 436, 520, 637. INCESTUOUS ADULTERY, 27. See Dissolution. INDIAN MARRIAGE, 266, 267. See Evidence. INFANTS. See Guardian ad litem. INJUNCTION, to restrain wife from dealing with property, 180. See Variation of Settlements; Costs. INTERIM ORDERS, as to custody and access, 139 — 147. See Custody and Access. INTERROGATORIES, 258. practice as to, 631 — 637. See Evidence. INTERVENERS, costs of and against, 228, 245 — 248. See Costs. INTERVENTION, 143, 192—203, 353—355. forms relating to, title of cause, alleged adulteress intervening (Form 40), 354. King’s Proctor’s plea (Form 96), 495. answer (Form 97), 496. See Custody and Access; Decree and Intervention. INVALID. See Guardian ad litem. IRISH MARRIAGE, 263, 266. See Evidence. JACTITATION OF MARRIAGE, 93, 94. what is, falsely boasting of pretended marriage, 93. decree of perpetual silence, 93. Mat. C. Act, 1857, s. 6... 93. suits frequent in Ecclesiastical Courts, 93. rare since institution of Divorce Court, 93. suit must be brought by one of parties to intended marriage, 93. defences, what are, 93. Court will not order trial by jury where no defence put in, 94. no decree where petitioner has acquiesced in boasting, 94. 806 INDEX. JACTITATION OF MARRIAGE — continued. PRACTICE in SUITS for, Part II., 420 — 424. petition (Form 70), 420, 421. affidavit verifying, 421. citation (Form 71), 422. guardian ad litem , 420. amendment of pleadings, 420. appearance, 420. answer and subsequent pleadings, 420, 422 — 424. answer (Form 72), 422. suing in forma pauperis, 420. appearance under protest, 420. affidavit in support of answer, 423. decree, 424. trial by jury, 424. petitioner acquiescing in boasting, 424. See also Forms, List of; Petition; Answer. JAPANESE MARRIAGE, 96. JUDGE’S NOTES, of evidence of witness, used on second trial, 275. See Evidence. JUDICIAL SEPARATION, 21, 61—82. grounds for, 61 — 78. Court bound by principles of Ecclesiastical Courts, 61. temporary residence in England sufficient for jurisdiction, 61. cruelty, what amounts to, 62 — 68. what was, in Ecclesiastical Courts, 62 — 64. actual bodily harm or reasonable apprehension, 62. mere incivility, 62. words of menace, 62. motive immaterial, 62. attempt to debauch servants, 62. venereal disease, 63. cutaneous disease, 63. spitting in face, 63. condoned, revival of, 63. difference of sexes, 63. provocation, 63. compromise, 63. in Divorce Court since 1857... 64 — 68. question of fact, 64. must render cohabitation unsafe, 64. safety of petitioner not compromised, 64. single act, 64. reasonable apprehension of further violence, 64. acts done under influence of disease, 64. delirium tremens, 65. insane person, 68. moral cruelty, absence of physical violence, 65 — 68. husband convicted of crime, shock to wife, 65. spreading false report, 66. constructive cruelty, children, 66. drunkenness, 67. wife’s knowledge of husband’s drunken habits before mar- riage, 67. venereal disease, 67. spitting in face, 67. INDEX, 807 JUDICIAL SEPARATION — continued. in Divorce Court since 1857 — continued. insulting conduct, 67, 68. condoned, revival of, 68. cruelty by wife, 68. danger to wife by her own conduct, 68. insanity of respondent, 68. respondent guilty of cruelty, petitioner of adultery, 68. desertion, what amounts to, 69 — 78. in Ecclesiastical Courts, what was, 69. must be for two years, and contrary to wish of petitioner, mere separation insufficient, 69. husband leaving home with wife’s consent to obtain employ- ment, 69. wife leaving home for health, not returning, 69. husband ceasing to correspond with wife, 69, 70. after unsuccessful suit for divorce, 70. husband in prison, 70. sentence of penal servitude, 70. not consorting with wife, 70. even where allowance paid, 70. reasonable excuses for desertion, 70. must be grave and weighty, 70. intemperance, 71. wife a prostitute, 71. any matrimonial offence sufficient, 71. wife submitting to indecent liberties, 71. taken away by her family, 71. non-consummation, fault of wife, 71. unreasonable condition as to return imposed by husband, 71. separation by mutual consent, offer to return not bond fide , 72. payment by husband not to molest, 72. separation, not desertion at first may become so afterwards, 72. husband willing to return, but living in adultery, 72. wife not obliged to remain with, 72. husband may be guilty of desertion, though wife leaves home first, 72. separation by mutual consent, question of fact, 73. bond fide offer to return after desertion complete, 73. desertion by wife, 73. by refusing to obey decree for restitution, 73. husband guilty of adultery offering to return, wife refusing to receive him, 74. bona fides of husband’s offers to return, question of fact, 74. when desertion commences, 74. husband guilty of adultery, but not cruelty, wife guilty of desertion, decree of judicial separation in favour of wife, 75. wife, guilty of improper conduct not amounting to cruelty, husband’s desertion justified, 75. wife refusing to allow husband marital rights, 75, 76. deed of separation no bar to judicial separation, 76. agreement to live apart without reasonable excuse, 76. bargaining away right to relief, 76. deed of separation not acted on, 76, 77. cohabitation, meaning of term, 77. desertion where no cohabitation, 77. 808 INDEX, JUDICIAL SEPARATION — continued. reasonable excuses for desertion — continued. under Summary Jurisdiction Act, 77, 78. See Summary Jurisdiction (Married Women) Act, 1895. decree of judicial separation in previous suit, effect of, 78. sodomitical practices, 78. compromise of suit, 78. defences in suits for judicial separation, 78 — 82. in Ecclesiastical Courts, 78 — 80. no distinction between adultery before or after cause of com- plaint, 79. improper conduct not amounting to adultery, 79. wife, virgo Intacta, 79. cruelty of husband petitioner, 79. forbearance or delay on part of wife, 79. in Divorce Court since 1857... 80 — 82. separation by consent, or desertion, 80. all defences in dissolution (except desertion) available in suits for judicial separation, 80. See Dissolution of Marriage. parties living apart under deed, 80. estoppel, 80. delay, how far a bar, 81. impediment to marital intercourse, supervening after mar- riage, 81. reversal of decree of judicial separation, petition for, 81. on ground of absence, 81. mere non-appearance, 81. PRACTICE in SUITS for, Part II., 405 — 413. must be commenced by petition, 405. distinction between decrees for judicial separation and dis- solution, 405. alleged adulterer not made co-respondent, 405. nor can obtain leave to intervene, 405. petition for, 406 — 408. affidavit verifying, 408. citations in, 409, 410. guardian ad litem , 410. amendment of pleadings, 410. appearance, 410. answer, 411. affidavit verifying, 411. relief by, 411. reply and subsequent pleadings, 410. hearing or trial, 411. decree in, 411. suing in forma, 'pauperis , 411. reversal of decree for, 411 — 413. petition for reversal (Form 66), 412. See Reversal of Decree. JURISDICTION, 1—23. of Court, whence derived, 1. original petitions, 1. subsidiary petitions, 2. foreign, meaning of term in Divorce Division, 2. Isle of Man and Channel Islands, foreign countries, 2. effect of recent decisions on jurisdiction, 3, 4. domicil, effect of, on jurisdiction, in suits for dissolution, 3, 4. INDEX. 809 JURISDICTION — continued. in other suits, 4. See Domicil. domicil of wife, 18. matrimonial home, 18. American divorce, husband not really domiciled in America, 18, 19. husband domiciled in America, 19, 20. judicial separation, foreign domicil, residence in England at time of commencement of proceedings, 21. raising question of jurisdiction, 21, 22. proper time for, 21, 22. appearing under protest, 22. Court can raise question at any time, 22. sending papers to King’s Proctor, 22. consent of parties cannot give jurisdiction, 22. lunatics, guardian ad litem , 22 23. restraining proceedings in foreign Court, 23. See Dissolution of Marriage; Judicial Separation; Resti- tution; Jactitation; Nullity; Damages; Custody and Access ; Alimony ; Protection Orders ; Variation of Settlements; Decree and Intervention; Legitimacy De- claration ; Summary Jurisdiction (Married Women) ; Motions- and Summonses; New Trial; Appeal; Enforcing Decrees and Orders; Costs; Evidence. JURY. See Hearing or Trial; Jactitation; Damages; New Trial and Re-hearing; Appeal. JUSTICES, duty of, 221. See Appeal; Summary Jurisdiction (Married Women) Act, 1895. KINDRED, table of prohibited degrees of, 277 — 279. KING’S PROCTOR. See Decree and Intervention; Costs. LEGITIMACY, of child, if denied by wife, must show non-access, and question must be raised on pleadings, 146. See Custody and Access. LEGITIMACY DECLARATION ACT, 1858... 204— 211. statute in extenso , 204 — 207. petitions by persons domiciled in England for declaration of legitimacy, or that they are natural born British subjects, 204, 205. petition must be supported by affidavit, 205. provisions of Mat. C. Act, 1857, to be incorporated as far as possible, 205. power to award and enforce payment of costs, 205. Attorney -General to be respondent, 205, 206. Court may require persons to be cited, 206. t 810 INDEX, LEGITIMACY DECLARATION ACT, 1858 —continued. practice as to citing, 206. persons not cited not to be prejudiced, 206. persons domiciled in Scotland, 206. final judgments already pronounced not affected, 206. legitimacy, exact meaning of word, 207. real estate, title to, 208. domicil of petitioner foreign, no property in England, 208. evidence, declarations of members of family, 208. ; post litem motam, meaning of term, 208. presumptions as to legitimacy, 209. how rebutted, 209. husband’s admissions of paternity, 209. title of honour, 210. marriage apparently bigamous, 210. legitimacy of petitioner’s grandfather, 210. Japanese marriage, 210. American’s divorce, validity of, 211. Gretna Green marriage, 211. marriage, presumptions and evidence as to, 211. PRACTICE AS TO, Part II., 498 — 510. petition must be verified by affidavit, 498. Attorney-General must be made a party, 498. rules of Divorce Court applicable to proceedings under, 498. Greek Marriages Act, practice under, 498, 499. time for filing* petition, 499. Attorney-General must be served with petition, 499. appearance and answer by, 499. specimen of pleadings in a suit for declaration of legitimacy, petition and answers, 500 — 509. practice as to citing third persons to see proceedings, 508. what documents served on Attorney-General, 508. citation, form of, 509. title of cause after citation of Attorney-General, 509. setting down cause for hearing, trial, &c., 509. documents required to be filed, 509. fees and costs, 509. guardian, petition by, 510. trial by jury of petition under Legitimacy Declaration Act, 510. jury refused, 510. claim for declaration of legitimacy cannot be inserted in statement of claim in probate action, 510. See also Petition; Affidavit; Citation; Forms, List of; Guardian ad litem; Amendment of Pleadings; Appear- ance; Answer; Notices; Reply and Subsequent Plead- ings; Particulars; Hearing or Trial; Suit; Fees; Costs. LICENCE, MARRIAGE. See Nullity; Marriage. LIEN, of solicitor for costs, 236, 237. See Costs. LUNATIC, proceedings for or against in dissolution, 22, 23, 26, 60. See Guardian ad litem. INDEX. 811 MAINTENANCE. See Alimony and Maintenance. MARRIAGE, 95—132. all presumptions in favour of, 95. voidable but not void, cannot be questioned after death of either party, 95, 96. burden of proof on party impugning, 96. meaning of term in English Court, 96. polygamy, Mormon marriage, 96. Japanese marriage, 96. matter of status as well as contract, 96. lex loci contractus, 97. capacity to contract, 97. Marriage Acts, 97, 98, 99. requisites for valid marriage, 99 — 111. place of marriage, 99. banns, 99. licence, 99. parties must be single, consenting, and of sound mind and body, 99. extract from “Dicey on Domicil” as to marriage, 99 — 101. consanguinity and affinity, 99. consent, mental competence, physical capacity, 99. interpretation of statutes as to marriage, 102. marriage by foreigners in England to evade law of their own country, 102. Portuguese subjects, marriage of first cousins by, 102, 103. special licence, how granted, 105. ordinary’s licence, how granted, 105. minister bound to solemnize marriage, 105. conscience clause in Divorce Act, 105. marriage without banns or licence, 106. oath for bishop’s licence, 106. time within which marriage must be celebrated, 106. fifteen days’ residence in parish, 106. consent of parents and guardians, 106, 109. Arches Court, jurisdiction as to licence, 106. informality, marriage when void on ground of, 107. knowledge of, by parties, 107. licence, partial misdescription in, 107. wrong description in, 107. disparity of fortune, 107. mock clergyman, 108, 114. fraud in inducement, 108. banns, marriage more than three months after publication of, 108. cases in which marriage set aside for undue publication of, 108, 109. ibid, held valid in spite of undue publication, 109, 110. how published, 108, 159. witnesses to marriage, 109. superintendent-registrar’s licence or certificate, 110, 111. new name acquired by reputation, 111. Consular Marriage Acts, licences under, 112. consul, marriage by, 114. marriage in England from 1756 — 1837.. .112. Registration Act, 6 & 7 Will. 4, c. 85... 112. Marriages Act, 1898... 113, 114. Church of England marriages, 114. 812 INDEX MARRIAGE — continued. marriages, 'per verba de prcesenti, 115. on board H.M. ships, 116, 117, 118. on board any ship, 117. on board merchant ships, 118, 119. within lines of British army, 116. place of celebration of marriage, 119. when by special licence, 119. ordinary’s licence, 119. licence or certificate of registrar, 120. under Marriages Act, 1898. ..120. hours at which persons may marry, 120. Scotch Marriage Act, 121. See Nullity; Evidence. MARRIAGE WITH FOREIGNERS ACT, 1906... 759. MARRIED WOMEN. See Protection Orders ; Summary Jurisdiction (Married Women) Act, 1895. MATERIAL FACTS, not brought to notice of Court, 197, 198. See Decree and Intervention. MATRIMONIAL HOME. See Jurisdiction. MATRIMONIAL SUITS, what are, 1, 2. MEDICAL INSPECTORS, practice as to, 436 — 441, 520. forms relating to, form of oath to (Form 82), 438. ibid, registrar’s minute of swearing and identification of parties (Form 83), 438. ibid, summons for appointment of, in suit for nullity (Form 134), 520. See Nullity; Motions and Summonses; Forms, List of. MINISTER, bound to perform marriage ceremony, 105. MINORS. See Guardian ad litem. MORAL CRUELTY, what is, 62 — 64. MORMON MARRIAGE, 96. MOTHER. See Custody and Access. MOTIONS AND SUMMONSES, practice as to. Part II., 511 — 524. motions, practice as to, 511 — 517. notice of motion, practice as to, 511, 512. order obtained without notice to opposite party, 512. INDEX. 813 MOTIONS AND SUMMONSES — continued. motions, practice as to — continued. case on motion, contents of, 512. affidavits in support, 512. copies of, to be delivered to other side, 512, 513. documents to be filed, 513. days for hearing motions, and when papers to be left in registry, 513. ex parte applications, 515. printed lists of motion days, 515. list of matters dealt with on motion only, 515. dispensing with co-respondent, 515. substituted service, 515. leave to intervene, 515. to confirm registrar’s report, 515. attachment, 515. discharging protection order, 515. injunction, 515. alteration of practice as to custody, &c. of children, 515. motions by way of appeal, 516. affidavits filed in opposition to motion, practice as to, 516. adjournment of motion, ibid., 516. order on motion, 517. office copy of, 517. time for appeal, 517. fees, 517. summonses, practice as to, 517 — 524. all matters not required to be by motion heard on summons, 517. effect of making motion instead of summons, 517. application to dismiss petition by consent, 517. certificate for counsel, necessary on summons before registrar, but not before judge, 518. nearly all summonses now heard by registrar in first instance, subject to appeal to judge, 518, 519. who may take out summons, 519. practice in Divorce Registry as to taking out summons, 520. if to be attended by counsel, to be so marked, 520. service of summons, 521. hearing of summons, practice as to, 521. party summoned failing to attend, affidavit of service required, 521, 522. summons to be annexed to affidavit of service and marked by commissioner, 523. non-attendance of party taking out summons, practice as to, 523. consent summons, ibid., 523. summons adjourned to judge, ibid., 523. appeal from judge in chambers, 524. order on summons, service of, 524. property claimed by wife, registrar can only report as to, 524. forms relating to, motion, form of notice of (Form 100), 513. ibid, case on (Form 101), 514. ibid, for re-hearing, notice of (Form 106), 529. summons, general form of, before judge (Form 102), 519. ibid, registrar (Form 103), 519. ibid, for appointment of medical inspectors (nullity) (Form 104), 520. 814 INDEX. MOTIONS AND SUMMON SES — continued. forms relating to — continued. ibid, affidavit of service and non-attendance (Form 105), 522. ibid, for payment of wife’s costs already incurred, and de- positing bond for further amount (Form 110), 552. ibid, for discovery and inspection (Form 126), 631. See also Forms, List of. NEGLECT OE MISCONDUCT, as defence to suit for dissolution, 57 — 60. See Dissolution. NEW TEIAL AND EE-HEAEING, 193, 223—227, 250, 274, 275. effect of order for, on decree nisi „ 193. distinction in terms, 223. new trial, motion for, must be to Court of Appeal, 223. re-hearing to Divisional Court of Probate, Divorce and Admiralty Division, 223. verdict against weight of evidence, 223. must be miscarriage of justice, 223. but may be new trial, though judge satisfied with verdict, 223. re-hearing as to some charges only granted, 224. jury disagreeing as to some charges, 224. issues for Court, 224. inconsistent verdict, 225. mistake in, not affecting material issues, 225. verdict for respondent, 225. against two co-respondents, new trial on application of one, 225. issues found against both co-respondent and petitioner, 225. notice of new trial does not suspend decree nisi, 226. order for new trial rescinds decree nisi, 226. decree nisi, effect of new trial where petitioner again successful, 226. time for applying for new trial enlarged, 227. security for costs of new trial, 227. appeal to House of Lords, 227. costs of, 227. use in, of evidence taken at first trial, 274, 275. practice as to, 525 — 539. See also Appeal; Costs; Decree and Intervention; Evidence. NULLITY OF MAEEIAGE, 4, 19, 20, 95—132, 193, 196, 257, 272, 273. general observations, 95. Court bound by principles of Ecclesiastical Courts, 95. marriage, presumptions in favour of, 95. lapse of time no bar to suit for nullity, 95. age of parties, 95. suit for, after decree of separation for adultery, 95, 96. marriage voidable but not void, 96. burden of proof on party seeking to impugn marriage, 96. marriage, what is, 96. capacity to> contract, 96. Marriage Acts, 97 — 99. requisites for valid marriage in England, 99 — 102, 105. freedom to contract, 99. INDEX. 815 NULLITY OF MARRIAGE — continued. extracts from Dicey on Domicil, 99 — 101. statutes relating to marriage, interpretation of, 102. marriage in England by foreigners to evade laws of their own country, 102. Portuguese subjects, marriage of first cousins, 102. lex loci contractus, 103. foreigner or British subject married in England cannot assert a personal incapacity, 104. residence, not domicil, test of jurisdiction in suits for, 104. ground for nullity must exist at time of marriage, 104. who may petition for, 104. any person having sufficient interest except in suits on ground of impotence, 104. grandfathers and grandmothers, 43 Eliz. c. 7... 104. want of consent of parents, &c., no ground for nullity, 106. informalities no ground for, unless both parties knew and con- sented to them, 107. : i disparity of fortune, 107. mock clergyman, 108, 114. decrees of nullity refused in spite of irregularities in publication of banns, 107, 108. granted on ground of undue publication of banns, 109, 110. Scotch Marriage Act, insufficient residence under, decree of nullity granted, 121. See Marriage. bigamous marriage, decree of nullity, 121. invalidity of first marriage pleaded, 121. misconduct of party to suit for nullity on ground of bigamy, 122. party marrying after decree nisi before decree absolute, decree of nullity granted, 122. divorce granted by competent Court of husband’s domicil, decree of nullity refused by English Court, 123. restrictions of colonial Courts on re-marriage after divorce, when recognized by English Court as ground for nullity, 123. Scotch divorce, marriage after, decree of nullity granted, 123. American divorce, 124. Indian Divorce Act, 124. consanguinity and affinity, 124. marriage, want of consent to; abduction; fraud and duress; decrees of nullity, 125. Deceased Wife’s Sister’s Marriage Act, 125, 764. deceased husband’s brother, 125. incapacity of mind (or insanity) as ground for nullity, 126 — 128. must exist at time of marriage, 127. recovery during trial, 128. burden of proof on person alleging insanity, 127. marriages of persons found insane by commission, void by statute, 127. lucid interval, 127, 128. burden of proof on person alleging lucid interval, 128. incapacity of body (or; impotence) as ground for nullity, 128 — 131. impotence must exist at time of marriage, 128, 129. suit for nullity on this ground can only be brought by person in- jured, 129. age of puberty, 129. impediment should be incurable, 129. 816 INDEX. NULLITY OF MARRIAGE — continued. triennial cohabitation, old rule as to, 130. wilful refusal of marital intercourse, impotence assumed, 130. impotentia quoad hunc vel hanc , 130. hysteria, 130. partial connection, 131. frigidity, 131. compromise of suit for impotence, allowed, 131. cruelty or adultery, no answer to suit for nullity, 131. delay, as answer to suit for nullity, 131. age, as answer to suit for nullity, 132. agreement not to sue, as answer to suit for nullity, 132. ante-nuptial incontinency or pregnancy by party other than hus- band no ground for nullity, 132. PRACTICE in SUITS for, Part II., 425 — 441. petitions for, forms of, 425 — 431. See Petition. petition for, must be verified by affidavit denying collusion and connivance, 431. citation, 431. citation (Form 78), 431. guardian ad litem , 432. amendment of pleadings, 432. appearance, 432. answer, 432. relief by answer, 432. decree of “ restitution ” prayed for in answer, 432. decree of nullity prayed for in answer, 432. contents of answer, 432. answers, forms of, 433 — 436. See Answer. reply and subsequent pleadings, 436. medical inspectors, 436. how appointed, 436. hearing case in corner d, 436. respondent refusing to attend for examination, 436. order for inspection must be made before applying for regis- trar’s certificate, 436. summons for inspectors, 437. order on summons, 437. notice of appointment of, 437. service of, 437. substituted service of, 437. appointment made in terms of summons, 437. solicitor for party claiming nullity responsible for inspector’s fees, 437. swearing inspectors and identification of parties, 437. oath of inspectors, form of (Form 82), 438. minute of medical inspection being sworn and of identification (Form 83), 438. proceedings before registrar, 439. parties identified separately, 440. medical examination of parties, 440. report of medical inspectors, 440. parties residing in country, proceedings before district regis- trar, 440. respondent out of jurisdiction, 440. fees and costs, 441. INDEX. 817 NULLITY OF MARRIAGE— continued. practice in suits for — continued. hearing or trial, 441. decree, 441. See also Alimony and Maintenance; Costs; Decree and Intervention; Evidence; Forms, List of; Variation of Settlements. OATHS, practice as to, 609, 610. Oaths Act, 1909... 765. See Evidence; Forms, List of. ONUS PROBANDI. See Evidence. ORDER. See Enforcing Decrees and Orders; Forms, List of. PARENTS, neither fit to have custody of child, 144. PARLIAMENT, divorce by Act of, before Mat. Causes Act, 1857... 24. ibid, in Ireland at present day, 24. PARTICULARS, practice as to, 361 — 367. forms relating to, order for (Form 43), 363. ibid, delivered pursuant to order (Form 44), 364. See also Dissolution; Judicial Separation; Restitution of Conjugal Rights; Nullity; Alimony and Main- tenance; Decree and Intervention; Legitimacy De- claration Act; Costs; Forms, List of. PAUPER CAUSE. See Forma Pauperis, Suing in. PAYMENT OF MONEY INTO AND OUT OF COURT, practice as to, 545 — 549. See Costs. PERMANENT ALIMONY and maintenance. See Alimony and Maintenance. PERPETUATING TESTIMONY, suit for, 273. See Evidence. PETITIONS, original, 1. subsidiary, 2. by guilty party to vary settlement, 190. custody of child should be prayed for in, 146. practice as to, 285, 287 — 297. D.M.C. 52 818 INDEX. PETITI ON S — co n tinned. forms of, for dissolution generally, commencement of (Form 1), 288. ibid, by husband, simple form of (Form 2), 290. ibid, by wife, containing various charges (Form 3), 292. ibid, alleging cruelty in general terms (Form 4), 295. ibid., by husband, claiming damages (Form 5), 295. ibid . by husband or wife, indorsement of (Form 6), 297. ibid, by minor, title of (Form 24), 326. supplemental petition for dissolution (Form 28), 332. petition for judicial separation by husband (Form 61), 406. ibid, by wife (Form 62), 407. petition for reversal of decree of judicial separation (Form 66), 412. ibid, for restitution of conjugal rights (Form 68), 417. ibid, for jactitation of marriage (Form 70), 420. petition for nullity, on ground of undue publication of banns (Form 73), 425. ibid, impotency (Form 74), 427. ibid, insanity (Form 75), 428. ibid, bigamy (Form 76), 429. ibid, affinity (Form 77), 430. petition limited to damages only (Form 84), 442. for alimony (Form 85), 447. ibid. (Form 86), 448. for increase of permanent alimony (Form 92), 465. for maintenance (Form 93), 469. for variation of settlement (Form 95), 480. 1 Legitimacy Declaration Act, 1858 (Form 98), 500. See also Judicial Separation; Eestitution of Conjugal Rights; Jactitation; Nullity; Damages; Alimony and Maintenance; Variation of Settlements; Custody and Access; Forms, List of; Legitimacy Declaration Act; Motions and Summonses; Costs. PETITIONER. See Dissolution; Judicial Separation; Restitution of Con- jugal Rights; Jactitation; Nullity; Custody and Access; Alimony and Maintenance; Protection Order; Variation of Settlements; Decree and Intervention; Legitimacy De- claration Act, 1858; Costs; Evidence. PLEADINGS. See Act on Petition; Affidavits; Amendment of Pleadings; Answer; Appeal; Citations; Costs; Forma Pauperis, Suing in; Forms; Motions and Summonses; Petition; Protection Orders; Reply and Subsequent Pleadings. PRACTICE, in matrimonial suits, Part II., 282 — 656. general observations as to, 282 — 284. undefended causes, 282. defended causes, 282. documents, form of, 282. pleadings, heading or title of, 282. address of solicitor, 283. country solicitors, 283. London agents, 283. petitioner in person, 283. document, where filed, 283. stamps and forms, 283. INDEX 819 PRACTICE, in matrimonial suits, Part. II. — continued. general observations as to — continued. Divorce Registry, situation of, 284. document in foreign language, 284. summonses, when heard before registrars in first instance, 284. in suits for dissolution of marriage, 285 — 404. See Dissolution of Marriage. in suits for judicial separation, 405 — 413. See Judicial Separation. in suits for restitution of conjugal rights, 414 — 419. See Restitution. in suits for jactitation of marriage, 420 — 424. See Jactitation. in suits for nullity of marriage, 425 — 441. See Nullity. as to damages, 442, 443. See Damages. as to custody and access, 444, 445. See Custody and Access. as to alimony and maintenance, 446 — 475. See Alimony and Maintenance. as to protection orders, 476 — 479. See Protection Orders. as to variation of settlements, 480 — 486. See Variation of Settlements. as to decree and intervention, 487 — 497. See Decree and Intervention. as to Legitimacy Declaration Act, 1858... 498 — 510. See Legitimacy Declaration. as to Summary Jurisdiction (Married Women) Act, 1895... 511. See Summary Jurisdiction. as to motions and summonses, 511 — 524. See Motions and Summonses. as to new trial and re-hearing, 525. See New Trial and Re-hearing. as to appeal, 525 — 539. See Appeal. as to costs, 540 — 603. See Costs. as to evidence, 604 — 637. See Evidence. as to enforcing decrees and orders, 638 — 656. See Enforcing Decrees and Orders. PRESUMPTIONS OF LAW, as to domicil, 7 — 12. as to marriage, 95, 211, 262, 266. as to registration of place where marriage solemnized, 262. as to legitimacy of child born in wedlock, 209, 256. PRINCIPLES OF LAW in matrimonial suits, Part I., 1 — 276. as to jurisdiction, 1 — 23. See Jurisdiction. in suits for dissolution of marriage, 24 — 60. See Dissolution. in suits for judicial separation, 61 — 82. See Judicial Separation. 52 ( 2 ) 820 INDEX. PRINCIPLES OF LAW in matrimonial suits, Part I. — continued. as to jurisdiction — continued. in suits for restitution of conjugal rights, 83 — 92. See Restitution. in suits for jactitation of marriage, 93, 94. See Jactitation. in suits for nullity of marriage, 95 — 132. See Nullity. as to damages, 133 — 138. See Damages. as to custody of and access to children, 139 — 147. See Custody and Access. as to alimony and maintenance, 148 — 168. See Alimony and Maintenance. as to protection orders, 169 — 174. See Protection Orders. as to variation of settlements, 175 — 191. See Variation of Settlements. as to decree and intervention, 192 — 203. See Decree and Intervention. as to Legitimacy Declaration Act, 1858. ..204 — 211. See Legitimacy Declaration. as to Summary Jurisdiction (Married Women) Act, 1895... 212 — 222 . See Summary Jurisdiction. as to new trial and re-hearing, 223 — 227. See New Trial and Re-hearing. as to costs, 228 — 250. See Costs. as to evidence, 251 — 276. See Evidence. PROHIBITED DEGREES, of kindred and affinity, table of, 277 — 279. PROTECTION ORDERS, 169—174. wife deserted by husband may apply for order to protect her pro- perty to police magistrate or justices in petty sessions, 169. ibid, or to the judge of the Probate, Divorce and Admiralty Division, 169, 170. effect of such orders to make wife a feme sole, 169, 170, 174. extends to property vested in wife as executrix or trustee, 170, 171. protects wife’s earnings, 156. persons or corporations dealing with her, 171, 172. application to discharge, by husband or creditor claiming under him, 171, 172. order must state time at which desertion commenced, 171, 173. desertion, for purpose of protection order, what is, 173. order may be discharged after death of wife, 173. has retrospective effect, 173. wife having, may bring action, 173. dying intestate, administration, 174. legacy to, 174. right to alimony 'pendente lite, 174. order should be in general terms to include all property of wife, 174. practice as to. Part II., 476—479. application for and affidavit in support, 476. application and affidavit must be approved by registrar, 479. INDEX 821 PROTECTION ORDERS — continued. practice AS to, Part II. — continued. order, how drawn up, 479. dismissing- order, 479. fees, 479. form of application for (Form 94), 477. See Forms, List op. PROVISIONAL ORDER (MARRIAGES) ACT, 1905... 758. QUEEN’S PROCTOR. See King’s Proctor. RECEIVER, practice as to, 639, 650 — 653. bond of (Form 134), 650. See Bond; Enforcing Decrees and Orders; Forms, List of. RE-HEARING. See New Trial and Re-hearing. RELIEF BY ANSWER, practice as to, 342, 343, 411, 416, 417, 432. See Answer; Dissolution; Forms, List of; Judicial Separa- tion; Restitution of Conjugal Rights; Nullity. REPLY AND SUBSEQUENT PLEADINGS, practice as to, 357 — 361, 455, 456. forms of, reply, general (Form 41), 358. ibid, alimony (Form 89), 455. See also Dissolution; Judicial Separation; Restitution of Conjugal Rights; Nullity; Alimony and Mainten- ance; Variation of Settlements; Decree and Inter- vention; Legitimacy Declaration Act; Costs. REPUTATION, presumption in favour of marriage arising from, 262. REQUISITION, or request for commission to examine witness out of the jurisdic- tion, practice as to, 621 — 623. form of (Form 120), 621. RESPONDENT. See Dissolution; Judicial Separation; Restitution of Con- jugal Rights; Jactitation; Nullity; Custody and Access; Alimony and Maintenance; Variation of Settlements; De- cree and Intervention; Legitimacy Declaration Act, 1858; Costs; Evidence. RESTITUTION OF CONJUGAL RIGHTS, 4, 17, 18, 83—92. Ecclesiastical Courts, defences to suit for, what were, 83, 84. should show grounds for divorce d mensd et thoro, 83. since 1857, should, as a general rule, show grounds for decree of judicial separation, 83. 822 INDEX. RESTITUTION OF CONJUGAL RIGHTS —continued. wife’s delicate health as answer, 83. petitioner guilty of incest, 83. impropriety of conduct by wife, 84. ante-nuptial incontinence, 84. grounds for petition, 84. object of petition in most cases up to 1884... 84. Mat. C. Act, 1884... 84— 86. periodical payments in lieu of attachment, 84. settlement of wife’s property, 85. power to vary order, 85. non-compliance with decree of, made desertion, 85, 86. custody of children, 86. Act for England only, 86. marriage must be proved in suit for, 86. but decree not granted in undefended case, on proof of marriage only, 87. wife guilty of adultery cannot get decree of restitution, 87. previous demand for cohabitation necessary before petition, 87. need not be in petitioner’s handwriting, 87. but must be civil and show desire to return to cohabitation, 87. may threaten proceedings, 87. statutory desertion by refusing to comply with decree of restitu- tion, 87. decree of judicial separation granted in such case, 87. statutory desertion revived by subsequent adultery, 88. revives previous adultery, 88. sufficient compliance with decree, what is, 88. order for settlement, 88. on application for, evidence may be given of wife’s conduct during cohabitation, 88. order against wife, property settled without power of anticipa- tion, 88. both parties guilty of adultery, 89. husband induced to marry by false representation as to wife’s pregnancy, 89. wife guilty of improper behaviour, not amounting to matrimonial offence, 89. wife addicted to drink, 89. acts not in themselves complete answer, may be inquired into, 89. ante-nuptial incontinence, 89. agreement not to sue for restitution, decree in spite of, 90. agreement for separation, how far answer, 90. violent temper, habitual intemperance, &c., as answer, 90. compromise of suit, 90. insanity, 90. unreasonable delay, 91. conduct not amounting to legal cruelty may be answer to suit for restitution, 91. misconduct of petitioner leading to desertion by respondent, 92. practice in suits for, Part II., 414 — 419. commenced by petition and affidavit in support, 414. written demand for cohabitation required before filing, 414. See Demand for Cohabitation. petition for (Form 67), 415. affidavit verifying, 416. respondent willing to return, staying suit, 416. citation (Form 69), 417. guardian ad litem , 416. INDEX. 823 RESTITUTION OF CONJUGAL RIGHTS — continued. amendment of pleadings, 416. cross petitions and consolidation, 416. appearance, 416. answer and subsequent pleadings, 417. hearing or trial, 416. appearance under protest, 416. relief by answer, 416. deed of separation must be specially pleaded, 418. decree, form of, 418. wife ordered to return to husband in fixed time, 418. husband ordered to return or to receive wife in fixed time, and to file certificate of obedience, 418. certificate, form of, 418. fees, 418. service of decree, 419. ibid, out of jurisdiction, 419. limit of time in which to obey decree, 419. wife evading service, 419. forms, petition (Form 67), 415. answer (Form 68), 417. citation (Form 69), 417. See Alimony and Maintenance; Costs; Custody and Access; Evidence; Forms, List of. REVERSAL OF DECREE OF JUDICIAL SEPARATION, petition for, 81. practice as to, 411 — 413. petition (Form 66), 412. See Judicial Separation; Forms, List of. REVIVAL of condoned matrimonial offence by subsequent misconduct, 39 — - 43, 68, 87, 88. See Dissolution; Judicial Separation; Restitution of Conjugal Rights. SCOTCH MARRIAGE, 264—267. See Evidence. SECURITY FOR COSTS. See Costs. SEPARATION ORDERS. See Summary Jurisdiction Act, 1895... 212 — 222. SEQUESTRATION. See Writs. SERVICE of pleadings and other documents, 19, 306 — 315, 334 — 336, 341, 361, 412, 415, 437, 454, 459, 470, 482—486, 494, 524, 532, 533, 544, 611, 639, 654, 656. SETTLEMENTS. See Variation of Settlements. 824 INDEX. SOLICITOR, order to pay alimony or maintenance to, 165. usual order for wife’s costs, 228 — 230. lien of, for costs in matrimonial causes, 236, 237. must satisfy himself as to wife’s defence, 237. charging orders made by parties in favour of, 236. injunction against parting with property in favour of, refused, 236. neglecting to obtain usual order for wife’s costs, position of, 238. bringing action at common law for extra costs, 238. change of, 558, 559. notice of change of (Form ), 559. See Alimony and Maintenance; Costs; Forms, List of. STATUTES, list of, xxix. i SUBPOENAS, practice as to, 627 — 630. ad testificandum (Form 122), 627. ibid, praecipe for (Form 123), 628. duces tecum (Form 124), 629. ibid, praecipe for (Form 125), 630. See Evidence; Forms, List of. SUBSTITUTED SERVICE, practice as to, 308 — 316. See Citation. SUMMARY JURISDICTION (Married Women) Act, 1895... 77, 212 — 222 . statute in extenso, 212 — 215. wife must have left home before she can obtain benefit of sect. 4. . . 212, 213. by and to whom orders may be applied for, 212, 213. powers of, of justices, 213. orders that may be made by justices, 213. limitations of powers of justices, 214. Court may vary or discharge order, 214. procedure, 214. enforcement of orders, 214. justices may refuse order in case more fit for High Court, 215. appeal, 215. Acts repealed, 215. protection for wife or husband of habitual drunkard, 216. habitual drunkard, what is, 216. persistent cruelty, 216. means of husband, 217. amount of allowance to wife, 217. decisions on separation orders on ground of desertion, 217 — 219. Summary Jurisdiction Act, 1848... 219. application must be made within six months, unless desertion is charged, 220. cohabitation, what amounts to, 220. deed of separation, bar to jurisdiction of justices, 221. desertion, reasonable excuse for, 221. wife returning to cohabitation pending proceedings, 221. duty of justices, 221. appeals on finding of fact, 221. justices’ clerks, duty of, 221. INDEX. 825 SUMMARY JURISDICTION (Married Women) Act, 1895— con- tinued. fresh evidence, what is, 222. summons out of time, 222. costs of proceedings under, 238, 239. practice as to, 511. See Appeal; Costs; Custody and Access. SUMMONS, out of time, before justices, 222. practice as to, 517 — 524. See Motions and Summonses. SUPPLEMENTAL PETITION. See Amendment of Pleadings. TABLE OF PROHIBITED DECREES OF KINDRED AND AFFINITY, 277—279. TAXATION OF COSTS, practice as to, 560 — 565. See Costs. TESTIMONY, suit for perpetuating, 273. See Evidence. THIRD PARTIES, intervention of, as to custody of children, 143, 144. See Custody and Access; Decree and Intervention. TRIAL. See Hearing or Trial. TRUSTEE. See Alimony and Maintenance; Settlements; Costs. TRUSTEE ACT, 1893, vesting order under, 191. See Variation of Settlements. UNREASONABLE DELAY, in taking proceedings, 26, 31, 54 — 57, 79. alleged by King’s Proctor, 202. See Dissolution; Judicial Separation; Alimony and Main- tenance; Decree and Intervention. VARIATION OF SETTLEMENTS, 175—191. powers of Court with respect to, 175. may order settlement for benefit of innocent party and chil- dren, 175. power to inquire into existing ante-nuptial or post-nuptial settle- ments, 175, 176. whether children or not, 176. but not after death of husband, 176. D.M.C. 53 826 INDEX. VARIATION OF SETTLEMENTS — continued. powers of Court apply equally to all cases of nullity, 176, 177. post-nuptial settlement, what is, 176. property already vested in children, 177. infant children, interests of, 177. powers of Court must be exercised once for all, 177. Court can vary Scotch settlement, 178. but no power over settlements, where divorce not pronounced by English Court, 178. settlement, what is, 178. wife, assignment by, of freehold property to husband, 178. “reversion,” what is, 178. power of appointment, powers of Court as to, 178. deed of separation, 178. varying powers of appointing new trustees, 179. dividend due before date of order, 179. dum sola et oasta clause, 179. husband, injunction to restrain from dealing with property, 180. conduct and property of parties considered, 180. guiding principle of cases, 180. examples of variations of settlements by Court, where wife found guilty of adultery, 181 — 187. where husband found guilty of adultery, 180, 187 — 190. petition for variation by guilty party, 190. Chancery Division, concurrent jurisdiction of, 190. funds in Chancery, 190. vesting order under Trustee Act, 1893... 191. costs of, 230 — 249. liability of witness to answer questions as to adultery on proceed- ings for, 255. PRACTICE AS TO, Part II., 480 — 486. rules of Court as to, 480. application for, must be by petition, 480. petition for, form of (Form 95), 480. See Petition. no affidavit verifying petition necessary, 482. petition sometimes signed by wife’s solicitor, 482. time for filing, 482. notice to respondent when filed before decree absolute, 482. service of petition, 482. trustee, when heard, 483. guardian of minor children, 483. service of petition dispensed with, 483. trustee resident in Australia, service on, 483. answer, time for filing, 483. Court has no power to hold inquiry until decree absolute, 484. proceedings in Chancery Division pending as to same settlement.. 484. respondent not answering, affidavit of service necessary, 484. trustees and other persons served must appear before answering,. 484. inquiry before registrar, 484. deeds produced, originals need not be left in registry, 485. appointment before registrar, how obtained, 485. respondent not appearing before registrar, affidavit of service of notice required, 485. report of registrar, 485. motion to confirm report, 486. order for variation, 486. INDEX. 827 VARIATION OP SETTLEMENTS — continued. service of, 486. amending order, 486. money ordered to be paid for benefit of child, 486. fees, 486. See Costs; Evidence; Forms, List of. VENEREAL DISEASE, communication of, 63, 67. not necessary to prove it was wilfully or recklessly com- municated, 63, 270. as proof of adultery, 270. See Judicial Separation; Evidence. VESTING ORDER, under Trustee Act, 1893... 191. See Variation of Settlements. WIFE’S COSTS, 228—239. practice as to, Part II., 542 — 558. bond for (Forms), 553 — 557. See Bond ; Costs ; Forms, List of ; Enforcing Decrees and Orders. WITNESS. See Evidence. WRITS, practice as to, 638 — 648. forms of, writ of attachment (Form 129), 640. ibid, praecipe for (Form 133 (1)), 644. writ of fieri facias (Form 130), 641. ibid, praecipe for (Form 133 (2)), 644. writ of sequestration (Form 131), 642. ibid, praecipe for (Form 133 (3)), 645. writ of elegit (Form 132), 643. ibid, praecipe for (Form 133 (4)), 645. LONDON: PRINTED BY C. F. RO WORTH, 88, FETTER LANE, E.C. . ■ * ■ . DPr T£. £ u£