A3 in Cornell University Law Library THE GIFT OF Date.JOA^e,...^. .,../.!. J.tf. Digitized by Microsoft® Cornell University Library KD 764.B88 1868 A treatise on the principles and practic 3 1924 021 643 105 4o^£ • Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation with Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® A TREATISE PRINCIPLES AND PRACTICE OF THE COURT FOR DIVOECE AND MATRIMONIAL CAUSES: THE STATUTES, KULES, FEES AND FORMS RELATING THERETO. BY GEORGE BROWNE, ESQ. BARRISTER AT LAW, INNER TEMFLE. ENLARGED AND AMENDED. LONDON: HENEY SWEET, 3, CHANCERY LANE ; STEVENS AND SONS, 26, BELL YARD; gain fookscllmi raft f uMis^rs. 1868. Digitized by Microsoft® & 2*^*1 LONDON : PRINTED BY C. EOWORTH AND SONS, NEWTON STREET, HIGH HOLBORN. Digitized by Microsoft® Cfeis Wiaxk IS RESPECTFULLY DEDICATED TO SIR JAMES PLAISTED WILDE, Knt. JUDGE ORDINARY OF THE COURT FOR DIVORCE AND MATRIMONIAL CAUSES, BY THE AUTHOE. Digitized by Microsoft® Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archi^fiBg/^y§iygu31 924021 6431 05 PREFACE TO THE SECOND EDITION. The original Rules devised for the practice of the Court for Divorce were elaborated with much skill and care ; and devoid, as the authors must have been, of the aid of experience, the Court being then in every respect a new one, it is remarkable how well they answered their pur- pose. Nevertheless, the practice of some years pointed out, though in a less degree than might have been ex- pected, where 'deficiencies arose from time to time, what rules required enlargement, and what required curtailing or suppression. Under these circumstances, the Rules of 1866 caused a very considerable variation in the pro- cedure of the Court, and rendered a fresh Edition neces- sary in any Work intended to afford assistance in that department. No doubt in questions of principle, former decisions are, in nearly every instance, of as much value as ever, but these are scarcely so likely to arise before the practitioner, as those points of daily occurrence, where all, or at all events, most of the changes occur. In the present Edition these alterations have been kept in view, and, in addition, in certain departments of the law of Divorce, where questions of principle have been found frequently to arise, containing much difficulty, there has been a corresponding increase in the text of this Edition. Such are questions of jurisdiction, of cruelty, and the like, and in these the "Work has been Digitized by Microsoft® VI PRKFACE TO THE SECOND EDITION. considerably enlarged. Though the Author, as well as the Practitioners of the Court, have to deplore the loss of the late Mr. Askey, the former has still found the same courtesy in the present officers of the Court in affording him information in matters of practice as he before experienced, and takes this opportunity of ten- dering them his thanks. 1, Elm Court, Temple, E.C., 31st August, 1868. Digitized by Microsoft® PREFACE. The jurisdiction of the Court for Divorce consists of two distinct branches, that which is created by the recent Act, and that which it inherits from the Extinct Eccle- siastical Courts. The former being the creature of the statute is, in theory, entirely novel ; but as the Legislature has, from time to time, passed Acts of Divorce, and has in the lapse of years worn a channel of principles, in which the practice of granting a dissolution of marriage has been formed, it is, in fact, not so new as at first sight it might appear. The present Court has at all times held itself bound by the decisions of the House of Lords in those cases. The following pages, therefore, are more ample on that branch of jurisdiction, where the procedure of the House of Lords has been bent to that of the present Court. The jurisdiction of the Ecclesiastical Courts is transferred, as to other suits, to the present Court, and its operation is therefore here much better defined. Nevertheless, as the procedure of the Common Law Courts, as to trial by jury, evidence, &c, &c, has been brought to bear on the entire jurisdiction of the present Court, the Author hopes that this branch has not been neglected. Trial by jury and by oral evidence, with the advantages of searching cross-examination in open Court, has been tested by long experience, and is allowed, by universal consent, to be the most certain method by which a fallible tribunal can arrive at a correct estimate of facts. But, Digitized by Microsoft® PREFACE. however great may be its advantage, it necessarily causes, when applied to a procedure in which it was heretofore unknown, some derangement of the practice. In treating, therefore, of the inherited jurisdiction of the present Court, the Author has kept more especially in view those points where any divergence from the ancient practice has been caused by the application of the rules of Common Law to the procedure of the Ecclesiastical Courts. He trusts, therefore, that the following pages will be useful even to those who are well versed in the principles and practice of these extinct tribunals. Besides those cases which decide leading questions of principle, there are many points of daily occurrence, of which no precedent can be found, and the practitioner may search the Reports in vain. Correct information as to these is, however, even more essential to him than as to questions of principle, — as the former are continually arising, and he has often to decide them upon the spur of the moment. The Author hopes that this Treatise is suffi- ciently ample in this respect ; and he must be allowed to express his thanks to his friend Mr. Askey and the other officers of the Registry for the kindness and courtesy with which they have ever afforded him information and instruction on these important points. The Author feels that their authority and thorough practical acquaintance with the working of the Court must impart a value to the Work which is not due to him. He takes this oppor- tunity, therefore, of giving the credit of the Work in this respect to those to whom it is justly due. 1, Elm Court, Temple, 21st September, 1864. Digitized by Microsoft® CONTENTS. List of Cases cited Addenda — 31 & 32 Vict. c. 77 xxi Deductions allowed in alimony . . . . . . . • xxii 1 Jurisdiction .. Grounds for Petition in Dissolution by a Husband by a Wife . . for Judicial Separation for Nullity for Restitution of Conjugal Rights 21 22 23 25 43 69 for Jactitation .. .. .. .. •• • . ..71 Defences in Dissolution *. . . .. .. •■ .. 73 Absolute 74 Discretionary., in Judicial Separation .. in Nullity in Restitution of Conjugal Rights in Jactitation . . . . . . 91 103 108 111 117 Petition for Reversal of Decree of Judicial Separation .. .. 118 Damages against Adulterer .. .. .. .. -. 119 Defence to .. .. .. .- .. .. .. 124 Custody of Children Provision for Wife. Alimony pendente Lite ^Permanent Alimony . . Settlements Protection to a deserted Wife's Earnings Practice and Pleadings Petition .. -. . • Affidavit in support . . Citation ... Appearance of Respondent Answer .. Replication Motion for Directions Setting down Cause . . Demurrer Amendment Abatement . . Form! Pauperis 125 131 142 154 157 159 ib. 166 170 179 184 187 188 192 194 197 202 203 Digitized by Microsoft® X CONTENTS. Practice and Pleadings — continued. page Motions and Rules, Summonses and Orders . . . . . . 205 Evidence 208 Hearing 2 ** Intervention . . . . . • . ■ . . • . . • • • 248 " Any Person" >■ .. •• .. •• -- 251 Queen's Proctor .. .. .. . . -• . . •• 253 Ancient Jurisdiction .. •• . . .. .. 257 New Trial 258 Decree absolute .. . • .. •• •• . . ■• 262 Appeal ■ • ■ • • • • • • • . . . . .. ib. to the House of Lords . . . . . . • • . . 265 to the full Court 268 Costs 270 Enforcing Decrees and Orders . . . . . . . . . . 292 Principal Statutes affecting Marriage . . . . . . . . 301 Places especially provided for .. .. .. .. .. 304 Appendix I. — Statutes .. . . .. .. .. .. .. 305 4 Geo. 4, c. 76 ib. 6&7 Will. 4, c. 85 315 6 & 7 Will. 4,^. 86 331 19 & 20 Vict. c. 119 347 20 & 21 Vict. u. 85 362 21 & 22 Vict. c. 108 376 22 & 23 Vict. c. 61 381 23 & 24 Vict. c. 144 382 25 & 26 Vict. c. 81 384 27 & 28 Vict. c. 44 385 29 Vict. c. 32 ih. 17 & 18 Vict. c. 125 .. .. 386 Appendix II. — Rules and Regulations .. .. .. .. 392 Consolidated Orders in Chancery .. .. .. 412 Appendix III. — Fees.. .. .. .. 417 Examples of Bills of Costs . . . . . . . . 423 Appendix IV. — Forms .. .. .. .. .. .. 457 GENERAL INDEX 500 Digitized by Microsoft® LIST OF CASES. A. PAGE A v. B .. ..66 Abbot v. Abbot and another . . 234 v. Abbott and Godoy . . 235 Abraham v. Newton .. .. 223 Adams t>. Adams .. .. 288 Afford v. Afford . . . . 284 Agar v. Holdsworth . . . . 48 Aikman t>. Aikman .. .. 10 Aldridge, Ex parte .. .. 158 Alison v. Alison. . . . . 65 Alexander v. Alexander . . 184, 298 Allardin v. Onslow .. 15,16 Allen v. Allen 75, 76, 78, 94, 95, 103, 161 v. and Darcy . . 283 Ambler v. Ambler .. 161,165,200 Amicable Society v. Bolland . . 266 Angle v. Angle . . 82, 86 Anichini v. Anichini 81, 94, 95, 104 Anon 67, 1&8, 253 Ex parte 160 Anquez v. Anquez .. .. 115 Anthony v. Anthony .. ..127 Argar v. Holdsworth . . . . 47 Arkley v. Arkley .. ..106 Armitage v. Armitage and Mae- donald 215 Armitage' s Divorce Bill .. 168 Arnold v. Earle . . . . 64 Ashby's Divorce Bill . . .. 210 Astley v. Astley .. 96,104 Astrope v. Astrope .. 41,210 Att.-Gen. v. Blucher de Wahl- 11, 13 14 18 221 18 6 285 137, 145, 1S4 stadt . . ■ v. Fitzgerald • i). Kent ■ v. Le Marchant • v. Pottinger ■ v. Rowe . . Aughtie v. Aughtie A vila v. Avila .. B- B- - v. B — -n ». M- 110 63 PAGE Bacon v. Bacon . . 245, 247 Badcock ». Badcock .. ..102 v. • and Cham- berlain 286 and another 188 Bailey and Delia . . 224, 275 .. 133 v. ■ V. Bailey Rocca Bain v. Bain v. Mason 230 Baker v. Baker . . 211, 213, 290 Balfour v. Carpenter . . . . 49 Bancroft v. Bancroft 105, 165, 227, 288 i>. andRumney 248 Bannister v. Bannister . . 248 v. and Da- vis.. 199 Barker v. Barker .. .. 79 Barlee v. Barlee ..69,112,294 Barnes v. Barnes 93, 103, 163, 291 Barnett v. Barnett Barrett v. Barrett Bartelot v. Hawker Bartlet v. Bartlet and Bal- manno Basing v. Basing Bastard v. Smith Bate v. Bolton Bateman v. Countess of Ross. Bawden ». Bawden .. Bayard v. Morphew . . Baylis v. Baylis .. 19 Bayliss v. Watkins Bayly v. Bayly Beavan v. Beavan . . 135, 224, 278 Beeby». Beeby 81,84,85,86,91, 96, 104, 107 Beevor v. Beevor , Belcher v. Belcher Belshaw v. Percival Bempde v. Johnstone Bentt). Bent and Footman 123, 146, 183 Bernard, Re 219 In goods of.. .. 218 Best v. Best . . 37, 38, 96, 98, 240 Bevan v. McMahon and Bevan (falsely called Bevan; 47, 52, 194 209 198 124 . 199 . 42 . 220 . 183 . 116 . 21 . 59 3,211 . 274 . 298 275 277 202 6, 9 Digitized by Microsoft® LIST OF CASES. PAGE BiJdulph v. Lord Camoys ■• 235 Billingay v. Billingay and Thomas 122 Bird v. Bell .. .. 134,139 ii. Bird .. .. 59, 156 (alias Bell) v. Bird . . 116, 275 Birt v. Barlow . . 120, 229, 231 Blackburne v. Blackburne .. 152 Blackmore a. Brider .. 23,61 Blakeraore v. Glamorgan Canal Company .. .. 24, 43 Bland's (Major) case .. .. 95 Bland v. Bland .. ..227 Blaquiere v. Blaquiere .. 145 Blount v. Blount .. .. 17 Blyth v. Blyth 264 Boddington v. Boddington and Nossiter . . . . 229, 286 Boddy v. Boddy and Grover .. 126, 131, 160, 161, 198,238, 257 Bodkin's case .. .. ..117 Boileau's Divorce .. .. 242 Bond j). Bond .. .. 4, 19, 20 v. Dymes .. ..222 Bonham's (Captain) case .. 239 Boreham v. Boreham .. ..100 Bostock v. Bostock . . 36, 89 Boulting v. Boulting .. 76, 98, 268 Boulton v. Boulton . . 253, 254, 255 v. and Page . . 290 Bowen v. Bowen .. .. 291 ». and Evans . . 25 1 , 291 Bowzer v. Ricketts . . . . 46 Boyd v. Boyd .. : ..130 v. and Collins . . 286 Boynton v. Boynton 130, 155, 277 Braham v. Brah am .. ..210 Brajnwell v. Bramwell . . 89, 1 1 3 Brealy v. Read .. .. 51 Bremner v. Bremner .. 186,285 v, and Brett 153, 287, 296, 299 43, 64, 65, 109 132, 136, 147, 198 Broadwood v. Broadwood .. 189 Brocas ii. Brocas .. .. 203 Brodie v. Brodie .. .. 20 Bromley v. Bromley . . . . 42 Brook v. Brook . . 45, 60 v. Carpenter . . 24, 43 Brookes v. Brookes . . 42, 233 Brown v. Brown 22, 34, 46, 63,139, 142, 222, 278 1). and Simpson 135 w.Smith .. 10,17 v. Wildman .. .. 177 Briggs v. Morgan . Brisco v. Brisco . PAGE Browning v. Reane •• •• 61 Bruce v. Bruce . . 9, 59 v. Burke .. .. ..59 Bruere v. Bruere .. .. 134 Burroughs v. Burroughs 186, 212, 213, 245, 281, 284 Burt u.Burt 24 Bushby v. Bushby .. ..298 Butler v. Butler .. 132,137 v. Dolben . . . . 72 Byrne v. Lord Carew .. ..116 C ». C .. 69,191 Caldwell v. Caldwell and Ken- nedy 121,123 Campbell v. Campbell 86, 91, 223 v. Corley .. ..72 Campbell's (Major) case .. 95, 104 Capdevielle, In re .. 7, 12 Capstick v. Capstick .. 132,138 Carden v. Cardeti .. .. 176 Cargill v. Cargill . . 42, 88 Carpenter v. Carpenter . . 62 Carryer v. Carryer and Watson 168, 169 Carstairs v. Carstairs . . . . 285 Carter v. Carter .. ..130 Cartleflge v. Cartledge . . 126, 260 Catteral v. Sweetman . • 43,45 Chaddock v. Chaddock . . 249 Chambers v. Chambers . . 105 i>. Caulfield . . .. 124 Chandler v. Chandler . . 173,174 Charles v. Charles .. .. 143 Charlton v. Hindmarch . . 261 Cheale v. Cheale .. .. 202 Cherry v. Cherry 192, 223, 245, 298 Chesnutt v. Chesnutt . . 29, 34 Chettle v. Chettle .. .. 106 Chetwynd v. Chetwynd 127, 129, 156, 257, 281 Chichester v. Donegal. . 7, 47, 258 v. Mure . . . . 59 Child v. Child 181 Chisaine's (Mr.) case .. .. 92 Churchill v. Churchill and Ab- bot 172 Ciocci v. Ciocci .. 34, 107, 226, 239 Clark v. Clark . . 122, 136, 151 v. Clark and others . . 282 Clarke v. Clarke and Clarke 96, 287 Clayton's (Col.) case .. .. 82 Clegg v. Levy . . . . . . 233 Clements v. Clements and Thomas .. .. 251,252 Digitized by Microsoft® LIST OF CASES. PAGE Clinton ». Clinton. . . 135, 299 Cloncurry's (Lord) case .. 85 Clowes v. Clowes .. 50,57,111 Coape v. Coape .. ..199 Cobbe «. Garston . . . . 59 Cock i). Cock .. .. ..40 Cocksedge v. Cocksedge 105, 106 Codrington v. Codrington 162, 259 ». and Anderson .. 129,169,287 Coghill v. Coghill and Lauriero 179 Cole v. Sherard .. ..218 Coleman v. Coleman . . . . 96 Collet v. Collet . . 89, 239 Comyn v. Comyn .. .. 121 v. and Hum- phries 218 Conelly v. Conelly .. 114,117,233 Conradi v. Conradi and Flash- man 196, 276, 288 • and others 197 45 235 Conway v. Beasly Coode w. Coode Cood v. Cood 99 Cook v. Cook 179 Cooke i). Cooke 89, 90, 108, 131, 137, 144, 146, 291 and Allen 208, 281,292 180 176 279 177 50 92 171 101 28 121 Cox v. Cox .. .. 93,140,290 Craige v. Lewin . . . . 9 Crampton v. Crampton 133,136 Crewe v. Crewe . . . . 83, 92, 239 .. 230 .. 98 v. and Lucy ». and Quaile Cooper v. Cooper — — — v. Green . . Cope v. Burt . . . • Cope's (Mr.) case Cotton v. Cotton Coulthart v. Coulthart Cousen v. Cousen .. Cowing v. Cowing and Wollen Cripps v. Cripps Cripp's case Croft v. Croft 194 Crommelin v. Crommelin .. 131 Crookenden v. Fuller .. .. 6 Cubley v. Cubley and Smith .. 126 Cudlipp v. Cudlipp . . . . 40 Cunnington ». Cunnington .. 102 Curtis v. Curtis 27, 32, 35, 86, 89, 91, 126, 129,130,246,269 D- D- -e v. A g -d. F 67 65 D'Aguilar ». D'Aguilar PAGE 28, 35, 82, 86, 89 8 6,7,10 234 85 146 176 238 103,150 216, 297 .. 223 4 Daley, In re Dalhousie v. McDouall Dalrymple u. Dalrymple Dance v. Dance . . Dart n. Dart .. Dasent u. Dasent .. Davidson v. Davidson .. Davies v. Davies Davis v. Davis.. v. Lowndes . . Davison v. Farmer . . Day v. Spread 227 Deane v. Aveling . . . . 64 v. Deane 132, 144, 166, 175, 230 Deck ». Deck .. .. 19,215 Dempster v. Dempster .. 81,156 Denniss v. Denniss .. 71,112 Dent v. Dent 89, 166, 282, 299, 300 Desmarest v. Desmarest .. 246 Dickens v. Dickens 134, 283, 291, 296,297 Diddear v. Faucit Dillon v. Dillon Dixon, In goods of v. Dixon 53 83,105 60 273 53 3 Dobbyn v. Corneck . . Doe d. Daroure v. Jones Dolphin v. Robbins . . Don v. Don D'Orleans (Duchess) in good: Dormer v. Williams .. Douglas v. Douglas Down's (Mr.) case D'Oyley v. D'Oyley .. Doyley's case . . . . Drevon v. Drevon -.6,10, Drew v. Drew Drummond v. Drummond Drysdale v. Drysdale . . Duggan v. Duggan Duins v. Donovan Dunn v. Dunn .. Durant v. Durant 33, 87, 89, 90, 91, 145, 146,198,239 Du Terreaux v. Du Terreaux 99 Dysart v. Dysart 27, 29, 38, 113 E. E v. T (falsely called E ) 109 Edwards' (Captain) case .. 92 Eldred v. Eldred .. 90,106 Eliot v. Eliot 240 . 241 of 16 . 57 , 168 . 92 . 145 . 240 15, 17 112 254 187 128 43 82 Digitized by Microsoft® xiy LIST OF GASES. PAGE Ellenborough's (Lord) case . . 24.0 Elliot and another v. Gurr .. 47 Ellis v. Ellis 84 Ellyatt v. Ellyat and others 125, 260, 279 Elwesu. Elwes.. .. 83,91 Enticknap v. Rice .. .. 214 Evans v. Evans 27, 39, 88, 90, 159* 167,194,229,244 v. and Bird .. 124 — — v. and Robinson 274, 280 i). Knight and Moore •• 194 Ewinge. Wheatley .. .. 50 Eyre v. Holier 202 Faremouth v. Watson.. .. 46 Farquharson v. Farquharson . . 50 Farraday, In the goods of .. 158 Faussett v. Faussett .. ..239 Fellowes v. Stewart .. ..53 Fenton v. Livingstone.. .. 45 v. Louther .. .. 300 Ferrers v. Ferrers . . 87, 1 08 Finch (In goods of Lady Hat- ton) 272 Finlay v. Finlay 136, 137, 236, 285 Fisher v. Fisher .. 148,212 Fiskjj. Fisk 150 Fitch u. Weber 3 Fitzgerald d. Fitzgerald 22, 225, 259,270 Fleetwood v. Steele .. ... 172 Fletcher v. Fletcher .. ..134 Ford v. Ford 216 Foreman v. Foreman . . . . 200 Forster v. Forster 70, 97, 104, 106, 122, 139, 171 v. and Berridge 21, 122, 123, 252, 277 Forth v. Forth .. .. 36,146 Fowler v. Fowler . . . . 256 Frankfort v. Frankfort . . 147, 265 Franklyn v. Colhoun .. ..300 • Franks v. Franks . . . . 150 Frebout v. Frebout and Penny 292 Furlonger v. Furlonger . . 36 Furness v. Furness •• .. 24 Fyler v. Fyler 276 Fynney v. Beasley .. .. 222 G sit. T e .. .. 65 Galen. Gale 33 PAGE Gapp o. Gapp and Leverson . . 219 Gardin v. De Garston 21, 184, 295 Gatehouse v. Gatehouse .. 40 Gaynor ». Gaynor .. 134, 169 Geils v. Geils . . . . 29,32 George's (Mr.) case .. .. 92 Gethin v. Gethin .. 93 Gibson v. Gibson 41, 84, 90 v. M'Carty .. 24 v. and Quartley .. 211 v. and Hagg .. 289 Gilpin v. Gilpin . • .. 78 Ginger v. Ginger . . .. 242 Gipps v. Gipps.. 76,78 v. and Hume .. 248 Glennie v. Glennie 77, 247 n^J D^.nln. 17(1 280 Glyde ». Davis.. .. 178 Goffrie d. Goffrie and Moore . . 194 Goldney «. Goldney .. 161 Goldsmith v. Goldsmith .. 246 Goode v. Goode and Hamson. . 95 Goodheim v. Goodheim and Gough- v. Gough .. 189 v. and Baynton 280 Grant v. Grant .. .. 203J 238 Graves v. Graves 41, 162 Gray v. Gray 254, 290 Greatorex v. Greatorex .. 281 Green v. Dalton .. 54 v. Green 165,195 Greenhill v. Ford .. 87 v. Greenhill.. .. 296 Greenshields v. Crawford .. 230 Greenstreet v. Cumyns .. 66 Greenway v. Greenway .. 29 .. 68 Griffiths. Griffith .. 195 Grindall v. Grindall .. 205 Groves v. Groves .. 102 H. H v. C ..68,110,209 Hakewill v. Hakewill.. 137, 138 Hall, Ex parte 158 v. Hall 32, 105, 196, 203, 279 Hallett ». Cox and others . . 178 Hamerton v. Haraerton 139, 140, 198, 238 Hamser v. Bereham . . . . 204 Digitized by Microsoft® LIST OF CASES. Hancock v. Hancock • v. Peaty PAGE .. 169 62,278 Harding v. Harding . . 253, 284 v. and Lance 211, 213, 227, 255 Hare v. Hare .. .. 192,193 Harford v. Morris .. 61,233 Harker u. Harker .. .. 153 Harmar v. Harmar .. .. 151 Harris v. Harris 30, 41, 76, 77, 94, 97, 105, 136, 139 v. Bradbury . . . . 295 Harrison v. Harrison .. d. Sparrow . . Harrod v. Harrod Hart v. Hart Haswell v. Haswell 295 55 90 73,98 ■ v. — — and Saun- derson .. .. .. 210 Hathaway v. Barrow . . 24, 228 Haviland v. Haviland . . 135, 223 Hawke v. Corrie . . 50, 57 Hawkes v. Hawkes 136, 139, 196 Havdon v. Haydon .. .. 246 Hayward v. Hayward 117, 137, 139 Healu. Heal 277 9 239 Heath v. Sansora Heathcote's Divorce . . Heaviside's Divorce Bill Hepburn v. Shirving . . Hep worth v. Hepworth 16 184, 284, 291, 296 Herbert v. Herbert . . . . 44 v. Shiell . . . . 178 Herbert's case . . . . 49 Hick v. Hick 287 Higgs v. Higgs .. .. 152 i). and Hopkins.. 162 Hillt). Hill .. 102, 136, 225,261 Hindmarch v. Hindmarch and Hussey 214 Hitchcock v. Hitchcock 198, 202, 261 Hitchins v. Hitchins Hoare v. Hoare Hoare v. Allen Hodges v. Hodges - ». Windham Hodgson v. De Beauchesne Holden d. Holden - v. Ex parte 224 77 121 83 . 124 6, 17 31,37 . 293 . 295 112, 276 Holland v. Holland Holmes v. Holmes Holt v. Holt and Fleming 139, 274 Homer v. Homer .. •• 61 Hood v. Hood 275 Hooke ». Hooke 168, 214, 230, 241, 242 PAGE Hooper v. Hooper 38, 116, 137, 145 Hope*. Hope .. .. 71,97, 113 Hopper v. Hopper 140,141,151 Home*. Home .. 24,157 Horner v. Horner . . . . 23 Hoskins i>. Matthews . . .. 16 Hudson v. Hudson 34, 202, 213 Huet d. Le Mesurier .. .. 235 Hughes v. Hughes . . 98, 99 Hull D.Hull 61 Hulme v. Hulme .. ..30 Humphrey v. Williams .. 195 ■ v. Williams (falsely calling herself Humphrey).. 108 Huntu. Hunt .. 105, 114, 115 Hunter v. Hunter ». .. 169 v. and Vernon . 167 Hyatt v. Hyatt and another . . 219 Hyde v. Hyde.. ... 128,148 v. and Woodmansee 4, 46 J. . 201 . 262 . 228 . 102 . 228 . 141 . 290 -. 168 . 300 . 156 . 272 . 43 11,17 Jago v.. Jago . . v. and Graham Jameson v. Leitch Jeffries v. Jeffries and Smith Jenkyn v. Jenkyn Jennings v. Jennings . . Jessop v. Jessop J inking v. Jinking Johnson v. Chippendale ; v. Johnson ■ v. Lee Johnston v. Parker . . Jopp v. Wood Joseph v. Joseph Joyce v. Joyce .. .. .. 254 Justice v. Gosling .. 24,228 K. Kay v. Duchess de Pienne . . 231 Kaye v. Kaye 273 Keats v. Keats.. .. 81, 85 V. and Montezuma 145, 161, 273, 276 Keegan v. Smith ,. .. 136 Kelly v. Kelly . . .. 134,136 Kempe v. Kempe .. .. 144 Kenrick v. Kenrick . . . . 29 Kent v. Burgess . . . . 233 King, In re 220 v. King 240 v. and Dent . . 163 v. Sansom .. ..113 Digitized by Microsoft® LIST OF CASES. PAGE Kingston's (Duchess of ) case 226, 262 Kirks. Dolby 170 Kirkman v. Kirkman .. .. 31 Kirkwall v. Kirkwall . . . . 87 Kischs. Kisch .. 171,201 Knight v. Knight .. ..35 Kretzschnera. Kretzschner and lleinecker . . .. .. 191 L. L (falsely called H- ) ». H .. 268, 292 Lacey v. Lacey • . .. 175 Lacon v. Higgins 233, 234 Ladmore v. Ladmore . . 153,297 Lainson v. Naylor .. 177 Lane V. Goodwin . . .. 50 Laneuville v. Anderson .. 14 Lardner's (Dr.) case . . .. 98 Latham v. Latham and Gethin 1 22, 141 Latour v. Latour .. 104 1>. and Teesdale . 4 Lautour v. Lautour 95, 255, 262 v. Queen's Proctor 262, 290 Lawrence v. Lawrence 25, 157 Laxton v. Laxton .. ..141 Leader J). Barry .. .. 235 v. Leader .. .. 168 Lean v. Viner and another .. 178 Leete v. Leete 164, 165, 194, 195 Legeyt v. O'Brien .. .. 62 Legrand v. Legrand . . . . 83 Leicester's (Lord) case .. 97 Lewis (falsely called Hayward) v. Hayward v. Lewis . . Lidmore v. Lidmore Lidstone v. Lidstone 63, 265 66, 253, 277 ..298 ..164 and Ed- monds 164 ..225 ..237 .. 233,234 ..203 Liffin v. Pitcher .. Limerick v. Limerick . . Lindo v. Belisario Ling v. Ling . . ». and Croker . . Livingstone v. Livingstone . . Linzee v. Linzee .. . . Lloyd v. Lloyd and Chichester v. Petitjean Lockwood v. Lockwood Lord i). Colvin Louis v. Louis Love v. Love . . 214 19 226 92, 210 .. 58 27, 243 5, 10 .. 149 .. 200 PAGE Loveden v. Loveden .. 147,240 Lovering v. Lovering •• 82, 88 Lowndes v. Douglas •• •■ 14 Lowe v. Lowe .. •• *■ 228 Lyne v. Lyue . . .. . • 183 M. M v. M ■ .. ..108 M (falsely called B ) v. B 110 M (falsely called H ) v. H .. .. 65,109 Maccan v. Maccan . . . . 247 Macarthy ». Gould . . . . 300 Macartney v. Macartney . . 216 M'Kechnie v. M'Kechnie and Menzies 215 Maclean v. Maclean . . Madan v. Madan Mallinson v. Mallinson Mann v. Ricketts Manton v. Manton March v. March .. 248 .. 138 .. 128 ..202 .. 219,286 24, 25, 43, 156, 157,215 ^-^— v. and Palumbo 156 Marchmont v. Marchmont .. 190 Margetson v. Margetson .. 153 Marris r. Marris . . . . 76 Marsh v. Marsh 32, 129, 130 Martin v. Martin .. 32,130 Martin's Divorce Bill . . 98 Masters v. Masters 227, 253, 255 Matison v. Matison .. .. 195 Matthews v. Matthews . . 108 Matthyssen's Divorce . . 93 Maxwell i). M'Clure .. .. 11 Mayhew v. Mayhew .. 53,74 Maynard v. Haselrigge . . 47 Mead v. Mead 151 Meadowcroft v. Hugenin 194, 262 v. Gregory . . 54 Meara ». Meara .. ..42 Michelson ». Michelson . . 77 Middleton v. Janverin .. 233 v. Middleton .. 198 Midgelev v. Wood 51, 93, 111, 470 Miles v. Chilton 44, 59, 132, 134 Milford i). Milford Miller v. Miller Miller's (Mr.) case . (Rev. C.) case Mills v. Mills Milne v. Milne Milner v. Milner Mogg v. Mogg . . . . . . 42 Molony v. Molony .. ..112 30 .. 258 .. 85 .. 239 215, 225 .. 172 27, 35, 199 Digitized by Microsoft® LIST OF CASES. PAGE Mondell v. Steele . . . . 222 Montague v. Montague 236, 258 Monteflore d. Montefiore . . 194 Moore v. Moore .. 140,151 Moorhouse v. Lord .. .. 11 Moorsam v. Moorsam .. 75, 105 Morgan's Divorce Bill 98, 210 Morgan v. Morgan .. ..107 Morris v. Miller .. ..120 v. Morris . . . . 148 and others v. Owen and others 191 Mortimer v. Mortimer 98,113 Mullineux, Ex parte .. .. 158 Murlock, Re 294 Munroe v. Douglas .. .. 9 Muspratt v. Muspratt .■ .. 168 N. N rv. M e .. ..66 Narracott v. Narracott ■ v. Hesketh Nash v. Nash Neeld v. Neeld Neil v. Neil Nicholls ». Nicholls . . Nicholson v. Nicholson 30, 88 and 141, 142 cliffe .. Nokes v. Milward v. Nokes Norfolk's (Duke of) case Norris v. Norris v. and Gyles Northey v. Cock Norton v. Seton Nott v. Nott 123, 191 246, 260 .. 106 , 91, 194 .. 149 138, 297 133, 241, 284 Rad- 217, 262 235, 243 .. 152 .. 160 .. 188 155, 182, 209 .. 231 .. 63 .. 41 O. O' Kane v. O' Kane and Palmer- ston 206 Oliver v. Oliver . . . . 30 Orme v. Orme .. .. 28,70 Osborne v. Osborne .. ..186 4,. and Martelle 225, 245 Otway v. Otway . . . . 144 Owen v. Homan .. •> S3 ■ w.Owen.. .. ..112 Pagani ». Pagani and Vining 265, 5 266 Palmer v. Palmer B. 36,76,90,257 Parker v. Hick. . Parnell v. Parnell Parr v. Parr ». and White Patrick v. Patrick Patrickson v. Patrickson Patten, In goods of Patterson v. Patterson. . Peacock v. Peacock . . Pearce v. Pearce Pearman v. Pearman 153, and gess Pearson v. Pearson Peddle v. Evans v. Toller Pelham (Lord) v. (Duchess of) Pellew v. Pellew Pemberton v. Pemberton Perrin v. Perrin Perry's (Mr.) case Pertreis v. Toncleur Phillips v. Phillips . Pickard v. Pickard Picken ». Picken Picton's case .. Pirie v Iron Pitt v. Pitt Plumer v. Plumer Pollack a. Pollack v. McNamara Pollard v. Pollard PAGE . 296 . 21 . 297 154 .. 22 .. 231 ..8,17 .. 139 .. 81 209, 230 .. 99 Bur- ..247 70,298 ..272 ..273 Newcastle ..300 ..99 140 .. 113 .. 84 .. 235 75,77,119, 133 36,146 .. 80 .. 233 .. 223 6,8,16 80, 248 225, 256 .. 256 230 — v. Wybournc v. Gerard Pomfret v. Pomfret Popkin v. Popkin . and Hem- ming 221 67 .. 272 .. 144 32, 33, 194. 240 Popkins v. Popkins . . . . 87 Porter v. Porter and Jaggard. . 163 Portsmouth v. Portsmouth 61, 275 Portugal v. Portugal . . . . 127 Pottinger v. Wightman . . 8 Potts v. Potts 247 v. and another .. 215 Pouget v. Tomkins .. •• 51 Pounsford v. Pounsford .. 183 v. and Bul- pin Power i>. Power Pratt «. Bull . . Priske v. Priske Pritchard v. Pritchard Proctor v. Proctor Pyne v. Pyne . . .. 123 .. 34 .. 293 .. 286 .. 146 96,102,104 161,162 b Digitized by Microsoft® Xvm LIST OF "CASES. Quicke v. Quicke PAGE ,. 168 Raffenel, In goods of . . • • 9 Ratcliffe v. Ratcliffe and An- derson 19, 145 ' v. and another 191 Rawlins v. Rawlins .. ..135 Ray v. Sherwood . . . . 46 Reed «. Passer 231 v. Reed . . . . 208, 295 Rees v. Rees .. .. .. 137 Reeves v. Glover •• ..194 u.Reeves .. 31,107 Reg. v. Billinghurst . . . . 52 v. Birmingham . . . . 50 v. Boston 228 D.Brampton .. .. 233 v. Brown . - . - 24 v. Burton-on-Trent .. 51 v. Chapman . . . . 49 v. Grundon . . . . 227 v. Howes 128 v. Mainwaring . . 229, 232 v. Millis 57 v. Penson . . . . • ■ 24 v. St. Faith's, Newton .. 52 v. St. Giles in the Fields 23, 61 — - v. Tibshelf - .. 52,55 v. Vaughan .. .. 4 u. Wroxton .. 44,50,51 Reuss v. Reuss . . .. ..201 Rich ». Rich 181 Richards v. Richards and Jones 190 Richardson v. Richardson . . 194 Ricketts d. Ricketts 113, 190, 240 Rigg v. Curgenwen .. ..121 Rix v. Rix . . . . 75, 239 Roberts v. Roherts .. 132,152 Robins v. Wolseley . . . . 74 Robinson v. Robinson 144, 145, 149, 151,246,276,288 ■ v. and Lane 168, 213, 240, 241, 242, 248 Rogers (falsely called Halm- shaw") b. Hamshaw . . .. 60 Rogers v. Rogers 75,77,138,283, 290 Roltfl. Rolt 279 Roohert). Rooher and Newton 229, 233, 236 Rowbotham v. Rowbotham 126, 143, 172, 174 Rowe v. Rowe . . . . . . 106 PAGE Rowley v. Rowley 116, 190, 199, 200 Russell v. Smith .. ..230 Rutter ». Chapman . . . . 220 Ryberg ». Ryberg .. •• 213 Ryder v. Ryder . . . . 128 Rylance v. Rylance .. •• 215 Ryves v. Att.-Gen 223 S (falsely called E ) v. E .. .. 64,67 S v. E .. 69,111 Saint Devereux v. Much Dew- church .. .. .. 231 Sampson v. Sampson .. ..198 Sanders ». Rodway .. ..114 Saunders v. Saunders 35, 149, 235 Sayer v. Glossop .. .. 230 Schutter v. Hodgson . . . . 202 Scott v. Scott 34, 70, 258, 259, 285 u.Jones .. .. ..66 Scrimshire v. Scrimshire .. 233 Searle v. Price 59, 214, 230, 242 Seatle v. Seatle .. .. 155 Seddon v. Seddon 124, 128, 287 v. and Doyle . . 261 Sellers. Seller .. .. 81,94 Serrell v. Serrell and Bamford 74 Serrill v. Serrill 22, 68, 245, 256 Sewell, Ex parte , .. ..158 Seymour v. Seymour .. .. 131 Sharpe, Ex parte .. 159,385 Shaw v. Shaw . . 195,221, 222 Sheldon v. Sheldon .. .. 254 Sherwood v. Ray .. 23,60 Shirley v. Wardross . . . . 140 Sichel v. Lambert . . . . 232 Sidney v. Sidney .. 148,265 Simmonds v. Kinnaird (Lord) 300 Simmon's Divorce .. •• 95 Simmons v. Simmons .• .. 28 Simonin v. Mallac .. 20,45 Simpson v. Dismore .. .. 230 Skeats ». Skeats and White . . 202 Smallwood v. Smallwood •■ 108 Smith e. Morris . . . . 276 v. Rumraens .. 24,228 D.Smith 33,39,113,133, 138, 140, 141, 145, 165, 206 v. Smith and Millet .. 288 Smyth «. Smyth .. 113,132 Snow v. Snow .. .. 82,88,91 Soilleux v. Harbet .. .. 117 Sommerville d. Sommerville 6, 8, 276 Sopwith v. Sopwith .. . . 280 Digitized by Microsoft® LIST OF CASES. PAGE Sparrow v. Harrison . . 64, 65, 68 Spedding ». Spedding.. .. 121 Spencer v. Barough . . . . 220 Spering v. Spering .. ..114 Spilsburyt). Spilsbury.. 161,200 Spratt v. Spratt . . 129, 204 Sprigg u.Banks .. ..177 Squires ». Squires .. .. 161 Stacey v. Stacey .. 128,130 Stagg v. Edgecombe .. .. 64 Stallwood v. Tredger .. ..58 Stand^en v. Standen and Peake 55 Stanhope i). Baldwin .. ..53 Stayte t). Farquharson . . .. 54 Steeds Steed .. .. 166,478 Steer, In re .. .. ..10 Stoate v. Stoate 149, 227, 252, 285, 291 Stockbridge v. Quicke.. .. 236 Stone u. Stone 75, 77, 78, 135, 256, 262 u. — — and Appleton 125, 225, 259 v. and Brownrigg 155, 156, 289 Storey v. Storey .. ..199 Story v. Houlditcb. .. ..220 Street ». Street.. .. .. 145 Stuart v. Stuart .. ..193 Studdy v. Studdy .. 79,211 Sudlow v. Sudlow .. ..174 Sugg v. Sugg 80 Suggatet). Suggate 33,91, 129,130, 161, 283 Sullivan's case .. .. . . 22 Sullivan v. Oldacre . . . . 52 D.Sullivan .. 79,107 Surtees, In goods of .. .. 178 Sussex Peerage Case . . 233, 234 Sutherland v. Cromie .. . . 219 Sutton v. Sutton .. ..203 Swiftw. Swift 194 Sykes v. Sykes.. .. .. 150 Symons v. Symons and Pyke 219, 298 T v. M (falsely called T ) 68 Tatham v. Tatham and Nutt .. 210 Tavernor v. Ditchfield 67, 195 Taylor v. Taylor 37,144,189,285 Teagle v. Teagle and Notting- ham 286 Thomas i>. Thomas .. .. 156 Thompson v. Thompson 39,99,126 v. ■ — and Sturnfels .. .. 269,284 Timmings v. Timmings . . 82, 85, 97 Tisdall v. Tisdall .. .. 91 Todd v. Todd 92 Tollemache v. Tollemache . . 99, 167 Tomkin v. Tomkin .. 167, 175, 207 Tomkins v. Tomkins .. 27,132 Tongue v. Tongue .. 53,57 Tooth v. Barrow . . . . 52 Tourle v. Tourle ..' 91,155,166 v. and Ranshaw 185 Treew. Quin .. .. 46,53 Trelawney v. Coleman .. 121 Turner*]). Meyers .. .. 62 v. Turner . . . . 87 Turner's (Miss) case .. .. 61 TuthiU D.Tuthill .. .. 105 Turton v. Turton . . 77, 86 Twells i). Clarke . . . . 202 Twist v. Twist 276 T7. U (falsely called F ) v. F 66 U (falsely called J ) v. J 68 United States (President of) v. Drummond ■ . . . . . 14 Vansittart v. Vansittart .. 114, 115 Vere's (Mr.) Divorce Bill .. 92 Vicars v. Vicars .. .. 143 W. W v. H .. 68,69 W ». H (falsely called W ) 43 Waddell i). Waddell .. ..35 Wakefield v. Mackay .. 50, 52 Waldegrave Peerage case .. 234 Walker v. Walker .. 108,199,204, 261, 276 Wallace v. Wallace . . . . 200 Wallscourt v. Wallscourt . . 37 Walton v. Walton and Hibbel 77, 215 Ward v. Ward .. 39, 117, 184, 194, 208, 248, 279, 295 and another v. Day . . 237 Waring d. Waring . . . . 37 Warr's (Mr.) case .. ..98 Warrender v. Warrender ..5, 8, 114 Watts v. Watts 152, 153, 292, 299 Weatherley v. Weatherley ..22, 238 Digitized by Microsoft® XX LIST OF CASES. PAGE WebbK. Webb .. 198,217 Weber v. Weber and Pyne 138, 274 Webster v. Webster .. 128,157 Weedon v. Timbrel .. ..124 Weguelin v. Weguelin .. 223 Weir's (Mr. Hope) case -.239 Weldeti. Welde ' ..64,65,111 Wells v. Cottam..46, 165, 178, 182, 277, 278 v. Lord Suffield .. ..170 v. Wells .. 188, 194, 195, 273, 277, 281 ». Wells and Hudson ' . . 142 v. Wells and Hamerton.. 164 Westmeath (Lord) v. West- meath, .. 27,28, 35,89, 91, 295 Wetherill v. Wetherill .. 160 Whaton's (Mrs.) case .. 61 Whitcombe v. Whitcombe .. 7 White D.White .. ..146 Whitmore t>. Whitmore 38, 134, 280 v. and Bret- tel 289, 290 Whittal v. Whittal and Hunt. . 212 Whittirgham's Trust, In re .. 158 Wicker v. Hume .. .. 5 Wight v. Wight and Field . . 289 Wilkinson d. Gordon .. .. 228 v. Wilkinson .. 62 Williams i). Dormer .. .. 8 v. Williams 40, 107, 152, 239, 240 ». and Pad- field 241 Willis j). Bernard .. ..121 Wilson v. Wilson ..69,91, 115, 149 v. Metcalfe . . . . 299 PAGE Wiltshire v. Prince . . . . 54 Wing v. Taylor .. 55,61 Winscom v. Winscom . . 288 v, and Plow- den .. .. 89,221,238 Winstone v. Winstone and Dyne 143, 273 Witt D.Witt 213 Wood v. Wood and Hutchins.. 182 Woodgate v. Taylor . . . . 21 Woods D.Woods .. 23,61 Woolley v. Morgan .. .. 171 Worrall's (Lieut.) case .. 84 Worsley d. Worsley . . . . 90 Wright, In re 235 v. Elwood .. 51,171 v. Wright . . 197, 207 Wyndham's Divorce Bill . . 99 X. X v. Y .. 63,243 Y. Y v. Y .. .. 249 Yeatman v. Yeatman . . . . 270 Yelverton v. Yelverton .. 4, 5, 7, 10 Young v. Dendy . . . . 262 Zyclinski d. Zyclinski. . 20 Digitized by Microsoft® ( xxi ) ADDENDA. 31 & 32 Vict. c. 77 (a). 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 : 1, Throughout this act the expression "the Court" shall mean Interpreta- the Court for Divorce and Matrimonial Causes. tion - 2, Section fifty-six of the act of twentieth and twenty-first Sect - 5 s of "Victoria, chapter eighty-five, section seventeen of the act of 8 - S g Ct lc .7 twenty-first and twenty-second Victoria, chapter one hundred o'f2l'&22 and eight, and section three of the act of twenty-third and Vict. c. 108, twenty-fourth Victoria, chapter one hundred and forty-four, a * n, 8 ^, 3 are hereby repealed. Vict. c. 144 3, Either party dissatisfied with the final decision of the Court repealed. on any petition for dissolution or nullity of marriage may, within Appeals to one calendar month after the pronouncing thereof, appeal there- House of from to the House of Lords, and on the hearing of any such appeal wtthta'one 6 the House of Lords may either dismiss the appeal or reverse the m0 nth. 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 No appeal dissolution of marriage no respondent or co-respondent, not in unde- appearing and defending the suit on the occasion of the decree ^"ded suits nisi being made, shall have any right of appeal to the House of lution unless Lords against the decree when made absolute, unless the Court, by leave of upon application made at the time of the pronouncing of the court. decree absolute, shall see fit to permit an appeal. 4, Section fifty-seven of the said act of twenty-first Victoria, Liberty to chapter eighty-five, shall be read and construed with reference to P arties t0 . r. o J ' . .. , . , marry again, the time for appealing as varied by this act ; and in cases where under this act there shall be no right of appeal, the parties respectively shall be at liberty to marry again at any time after the pronouncing of the decree absolute. (a) This statute was passed while the work was in the printer's hands. B. C Digitized by Microsoft® XX11 ADDENDA. Short title. 5. This act may be cited as " The Divorce Amendment Act, 1868." Qualified 6. This act shall extend to all suits pending at the time when retrospective the same shall come into operation, notwithstanding that a decree n ' 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. Note to Page 139. * Generally, payments made by a husband 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 payment of the alimony allotted and deducted from the amounts payable by him./ Hamerton v. Hamerlon, 1 Hagg. 27 ; Harris v. Harris, 1 Hagg. 353 ; Crampton v. Crampton and Armstrong, 32 L. J., P. & M. 142 ; but see Harmar v. Harmar, 3 Jur. (N. S.) 168. Digitized by Microsoft® THE PRINCIPLES AND PRACTICE IN JURISDICTION. The "Court for Divorce and Matrimonial Causes" sutyect- has power (partly given by the substantive enactments mat er ' of the 20 & 21 Vict. c. 85, and subsequent statutes, and partly derived from the jurisdiction of the Eccle- siastical Courts transferred to it by the 6th section of that Act) to pronounce decrees of 1. Dissolution of Marriage (a). 2. Judicial Separation (b). 3. Nullity of Marriage (c). 4. Restitution of Conjugal Rights (c). 5. Jactitation of Marriage (c). These may be called decrees in original petitions, but, besides these decrees, the Court has jurisdiction in matters subsidiary to or consequent on such original matters, as 6. Reversal of Decree of Judicial Separation (d). 7. Damages against an Adulterer (e), and how such are to be applied. 8. Provision for Wife (/). 9. Concerning Settlements of Property (g). 10. Custody of Children (A). (a) 20 & 21 Vict. c. 85, s. (e) Ibid. s. 33. 31. (/) Ibid. ss. 7, 32. (ft) Ibid. ss. 6, 7 and 16. ( g) Ibid. s. 45. (c) Ibid. ». 6. (h) Ibid. s. 35 j 22 & 23 (rf) Ibid. s. 23. Vict. c. 61, s. 5. ■&.1* B Digitized by Microsoft® JURISDICTION. What is allegiance. Children born abroad. Appeals, whether from one part of the Court to another, or to the House of Lords, will be considered hereafter. In questions arising on the jurisdiction of the Court there are four elements to be considered : — 1st, Allegiance ; 2nd, the place of marriage ; 3rd, the place of domicil ; 4th, the place of the delictum ; and it will be well to define the meaning of these terms before we consider their operation. 1st. Allegiance is the tie or ligamen which binds the subject to the king in return for the protection which the king affords the subject . . . which cannot be forfeited, cancelled or altered by any change of time, place or circumstance, nor by anything but the united concurrence of the legislature. An Englishman, who removes to France or to China, owes the same alle- giance to the king of England there as at home, and twenty years hence as well as now (i). An alien is one who is born out of the king's domi- nions or allegiance, but this must be understood with some restrictions. The common law indeed stood absolutely so, with only a very few exceptions, so that a particular Act of Parliament became necessary after the Restoration for the naturalization of his Majesty's English subjects born in foreign countries during the then late troubles (k). Yet the children of the king's ambassadors born abroad were always held to be natural subjects ; for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent, so with regard to the son also he was held (by a kind of postliminium) to be born under the king of England's allegiance represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by 25 Edw. 3, st. 2, that all children (i) 1 Black. Com. 369. (k) 29 Car. 2, c. 6. Digitized by Microsoft® JURISDICTION. o born abroad, provided both their parents were, at the Allegiance. time of the birth, in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England. By several more modern statutes (7 Ann. c. 5 ; 4 Geo. 2, c. 21 ; 13 Geo. 3, c. 21) these restrictions are still further taken off; so that all children born out of the king's ligeance, ■whose fathers (or grandfathers by the father's side) were natural-born subjects, are now deemed to be natural-born subjects themselves, to all intents and pur- poses, unless their said ancestors were attainted; or banished beyond sea for high treason, or were at the birth of such children in the service of a prince at enmity with Great Britain (Z). And now any woman married or to be married to a natural-born subject or person naturalized shall be deemed and taken to be herself naturalized, and have all the rights and privi- leges of a natural-born subject (»*). The privileges which the 4 Geo. 2, c. 21, and 13 Geo. 3, c. 21, confer, are the privileges of the children, and not of the father ; and therefore acts, intended by a British-born subjeet to have the effect of abandon- ment or abjuration of his rights in that character, do not deprive his children of the benefit of the 4 Geo. 2, c. 21, and 13 Geo. 3, c. 21, unless such acts bring them within the disqualifying provisions of those statutes (n). 2nd. The locus contractus, or place where the mar- locus con- riasre was solemnized. In the Divorce Court the term o foreigner means one who is not an English subjeet, Foreign. and foreign and abroad means everywhere out of England. " The Court is a Court for England, not for the United Kingdom or for Great Britain, and, for Ireland and ° Scotland. the purposes of this jurisdiction, Ireland and Scotland (l) See Doe d. Daroure v. (n) Fitch, v. Weber, 6 Hare, Janes, 4 T. R. 300. 51 ; 17 L. J. Ch. 73. (m) 7 & 8 Vict. c. 66, s. 16. B2 Digitized by Microsoft® JURISDICTION. England. Channel Is- lands. Colonies. are to be deemed foreign countries equally with France or Spain" (o). By England is meant England, Wales and the town of Berwick-upon-Tweed ( p). isle of Man. The Isle of Man is not within the United King- dom (q). Similarly the Channel Islands are foreign coun- tries (r) for the purposes of the Divorce Court. The colonies and plantations also (excepting for the purposes of allegiance) are foreign countries, for no Act of Parliament made after a colony is planted, is construed to extend to it, without express words showing the intention of the legislature to be that it should (*), and their matrimonial law is identical with ^nat which prevailed in England before the first Mar- riage Act, except where it has been regulated by enactments or ordinances of their own municipal law, or by Orders in Council (t). The word marriage in the Divorce Court means the voluntary union for life of one man and one woman to the exclusion of all others, as understood in Christian countries. Therefore the Court will not recognize as a valid marriage, one contracted, in a country where polygamy is lawful, between a man and a woman, who profess a faith which allows polygamy, as the Mor- mons (u). Marriage is one and the same thing substantially all the Christian world over ; our whole law of marriage assumes this ; and it is important to observe that we regard it as a wholly different thing, a different status, from Turkish or other marriages among infidel na- tions. This cannot be put on any rational ground, Marriage. (o) Sir C. Cresswell, Yelver. ton v. Yelverton, 1 Sw. & Tr. 586; Bond v. Bond, 29 L. J., P. M. & A. 143. ( p) 20 Geo. 2, c. 42, s. 3. (q) Davison v. Farmer, 6 Ex. 242; 20 L. J., Ex. 177. (r) 4 Inst 286. (s) R. v. Faughan, 4 Mod. 222 ; 4 Burr. 2500. (*) Lautour v. Teesdale, 8 Taun. 830. (u) Hyde v. Hyde and Wood- mansee, L. R. 1 Pro. & D. 130. Digitized by Microsoft® JURISDICTION. except our holding the infidel marriage to be some- thing different from the Christian, and our also hold- ing Christian marriage to be the same everywhere (a;). Domicil. — The word is of Latin origin, derived Domicii. from the civil law, and seems to answer to our word " home." " By domicil we mean home, the permanent home (#)." It is defined in Justinian, thus " in eodem loco singulos habere domicilium non ambigitur, ubi quis larem rerumque ac fortunarum suarum summam constituit ; unde rursus non sit discessurus si nihil avocet, unde cum profectus est peregrinari videtur" (z). The definition is quoted by Lord Wensleydale, with approbation, as " Habitation in a place with the inten- tion of remaining there for ever, unless some circum- stance should occur to alter that intention " (a). That place is properly the domicil of a person, in which he has voluntarily fixed the habitation of himself and family, not for a mere special and temporary purpose, but with a present intention of making it his perma- nent home, unless and until something (which is unex- pected or uncertain) shall occur to induce him to adopt some other permanent home (b). The word " domicil " has various meanings, ac- cording to the subject-matter with reference to which it is used ; for some purposes the domicil of origin may be retained, and yet a sufficient English domicil be acquired to found the jurisdiction of the Court (c). But this seems to have been doubted by Lord West- bury ; as the House of Lords affirmed an appeal from the Court of Session, where that Court "seemed to have thought that some domicil, short of the absolute (x) Lord Brougham, War- (a) Wicker v. Hume, supra. render v. Warrender, 2 CI. & (b) Lord v. Colvin, 28 L. J. Fin. 532. Ch. 361. ( y) Lord Cranworth, Wicker (c) Yeherton v. Yelverton, 1 - v. Hume, 4 Jur. N. S. .938. Sw. & Tr. 585. (z) Just. De incolis, 1, vii. Digitized by Microsoft® JURISDICTION. Question of fact. Of origin. and complete domicil, would be a sufficient forensic domicil to confer jurisdiction" on that Court (d). The question of domicil prima facie is much more a question of fact than of law (e), Domicil is of three kinds :— ~ 1. Domicil of origin. 2. Domicil by law. 3. Domicil by choice. 1 . Domicil of origin. This is not the place where a person happens to be born, but the home of his parents (/). "The domicil of origin is that arising from a man's birth and connections " but the term domicil of origin is more correct than that of birth, for the mere acci- dent 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 (g). This domicil is to prevail until the party has not only acquired another, but has manifested and carried into execution an intention of abandoning his former domicil, and taking another as his sole domicil ( h) . And where issue is joined on the question of domicil, the burthen of proof is on the party setting up the abandonment of the domicil of origin (i). The pre- sumption of law is against the intention to abandon the domicil of origin (k). The Courts are slower to hold a change of the domicil of origin, and must be satisfied that the testator intended quatenus in Mo exuere patriam, (I). (d) Pitt v. Pitt, 10 Jur. N. S. 735. (e) Bempde v. Joh?istone, 3 ^es. 201. (/) Phill. P. & M. of Ju- rispr. 165. (g) Somerville v. Somerville, 5 Ves. 786. (h) Ibid, and Dalhousie v. M'Douall, 7 CI. & Fin. 817 ; Crookenden v. Fuller, 29 L. J., P. M. & A.l; ] L. T., N. S.70. (?) Crookenden v. Fuller, su- pra ; Att.-Gen. v. Rome, 31 L. J. Ex. 314. (&) Hodgson v. De Beauchesne, 12 Moore, P. C. C. 285; Att.- Gen. v. Rowe, supra. (0 Drevon v. Drevon, 12 W. R. 946; 10 L. T., N. S.730; 10 Jur. N. S. 717, V.-C. K. Digitized by Microsoft® JURISDICTION. If a person has actually removed to another place Domicii. with the intention of remaining there for an indefinite time as a place of fixed present domicii, it is to be deemed his place of domicii, notwithstanding he may entertain a floating intention to return (to his native Country) at some future period (m). Domicii is defined as "a residence at a particular place, accompanied with positive or presumptive proof of an intention to remain there for anunlimited time" (n). On the other hand, Lord Wensleydale lays it down that "every man's domicii of origin must be presumed to continue until he has acquired another sole domicii by actual residence, with the intention of abandoning his domicii of origin : this change must be animo et facto, and the burthen of proof unquestionably lies upon the party who asserts the change" (o). In a recent case, the majority of the judges relied on the latter view, and doubted the soundness of the former defini- tions ( p). 2. The domicii given by law. This includes those to Bylaw, whom the law assigns the domicii of others on whom they depend; the wife during marriage, the minor, &c. (q). The husband's actual and the wife's legal domicii are of wife. prima facie one, wherever the wife may be personally resident^). By marriage the domicii of the husband becomes that of the wife (s). The domicii of the husband is that of the wife ; she cannot acquire a separate domicii for herself, though the husband may have been guilty of such misconduct as would furnish her with a defence to a Suit by him for restitution of conjugal rights (t). And where a (m) Sto. Confl. of Laws, o. 3, rispr. 165. h. 46. \r) Chichester v. Donegal, 1 (n) Ph. on Domicii, ch. 2, Add. 19. ss. 15, pi. 13. (s) Dalhousie v. M'Douall, 7 (o) 3 Macq. H. of L. Ca. CI. & Fin. 817. 854, 877; 7 Jur. N. S. 1017. (0 Yelverton v. Yekerton, 29 (p) Capdeviette, In re, 33 L. J., P. M. & A. 34; Whit- : L.J. Ex. 306. combe v. Whitcombe, 2 Curt. (j) Phill. P. & M. of Ju- 351. Digitized by Microsoft® JURISDICTION. Domlcil by law. Of child. Domicil by choice. wife resided in Paris apart from her husband for many years before her death without having any legal sepa- ration or divorce, it was held that she, as the wife of a domiciled Englishman, could not obtain a foreign do- micil («). And this continues even when the parties are living jipart under a deed of separation (x), and even after the wife (who was living apart from her husband by agreement) had instituted a suit in the Scotch Courts for a divorce, on the ground of the husband's adultery (j/). But this presumption fails after a sentence of divorce a mensd et thoro i choice. place is ■prima facte evidence that he is domiciled at that place, and it lies on those, who say otherwise, to rebut that evidence : it may be rebutted, no doubt : a person travelling, on a visit : he may be there on ac- count of his health or business : a soldier may be ordered to Flanders, and be detained at one place many months: the case of ambassadors, &c. (/). But under certain circumstances, a foreign ambassador was held to have acquired an English domicii (g). An acquired domicii is not lost by mere abandonment, Domicii, but continues until a subsequent domicii is acquired, -**) which can only he animo et facto, unless the party die in itinere towards an intended domicii (h). B. left Dunkerque, where she had an acquired domicii, with intention of residing in England : she got on board the packet at Calais, but before it left the harbour she was, through illness, obliged to land, and never sufficiently recovered to leave France. Held, that there was no sufficient act to give effect to the in- tention to resume the English domicii (i). A domicii once acquired remains until finally abandoned or a new one gained : to constitute a change of domicii, there must be both animus et factum : residence in a country for any length of time is insuf- ficient without these requisites to constitute a change of domicii. Where a question between a reverter to the domicii of origin and a domicii in another country is in equilibrio, the domicii of origin will prevail (k). Slighter evidence is required to warrant the conclu- sion that a man intends to abandon an acquired do- micii, and to resume his domicii of origin, than -is (e) Bempde v. Johnstone, 3 Madd. 379. Ves. 201. (*) Raffenel, In goods of, 3 (/) Lord Thurlow, Bruce v. Sw. & Tr. 49 ; 32 L. J. Prob. Bruce, 2 Bos. & P. (note) 230. 203. ( g) Heath V. Sanson, 11 (k) Craigie V. Lewin, 7 Jur. Beav. 441. 519, Pre. C. (A) Munroe v. Douglas, 5 B5 Digitized by Microsoft® 10 JURISDICTION. Domieii, necessary to justify the conclusion that he means to abandon his domicil of origin, and to acquire a new one (£) ; and to justify the Court in deciding that a man has acquired a new domicil in a foreign country, than in one where he is not a foreigner (ni). Declarations. Mere expressions of an intention not to renounce a domicil of origin cannot prevail against the intention and facts collected from the acts of the party, if those are otherwise sufficient to constitute a domicil abroad (n). The mere declaration of an intention to change a domicil, without an actual change of residence, is in- operative to create a new domicil : and to constitute a new domicil there must be not only the factum of resi- dence in a place, but the animus manendi (o). In questions of domicil, less weight is given by the Courts to a testator's declarations than to his acts, and no one act is necessarily per se paramount in its im- portance, but the relative importance of all his acts, however trivial, must be considered as evidence of the animus manendi or revertendi (j>). The animus to change an acquired domicil is not sufficient without the factum of return {q). Actual resi- There must be actual residence; the mere legal fiction (if any) that an officer is supposed to be present at the head-quarters of his regiment (which were at Woolwich), while really being with his company in Scotland, is insufficient to found a domicil (r). In order to acquire a domicil there must be actual resi- dence in the place chosen, which must be the principal and permanent residence of the party (s). To effect a (0 Lord v. Colvin, 28 L. J. Cas. 854. Ch. 361 ; IW.fi. 250. ( p) Drevon v. Drevon, 10 Jur. (m) Ibid. N. S. 717 ; 12 W. R. 946. (n) Steer, In re, 3 H. & N. ( q) Ibid. 594; 28 L. J. Ex. 22. (r) Yelverton v. Yelverton, 1 (o) Brown v. Smith, 15 Beav. Sw. & Tr. 585. 444; 21 L. J. Ch. 356; Aik- (s) Dalhousie v. AfDouall, 7 man v. Aikman, 3 Mac. H. L. CI. & Fin. 817. Digitized by Microsoft® tfeoce. •ttTRISDICTIOtf. 1 1 change of domicii there must be an actual intention to Domicii, abandon the old domicii, and to acquire a new do- ° angeof- micil (<). There must be an actual abandonment of the prior Actual aban- , . donment. domicii. For Where A., domiciled in England, took up his abode in Scotland under circumstances which, had they stood alone, would have sufficed to constitute a Scotch domicii, but, inasmuch as he all the time re- tained his English residence and performed certain functions in England: held, that he had not aban- doned his English domicii (u). A mere change of Mere change of residence. residence, however long continued, does ndt effect a change of domicii in a testamentary sense, unless there is also an intention to change the domicii, or throw off his native country, exuere patriam: as for example, if an Englishman go to France he must not only reside in France, but intend to become a Frenchman instead of an Englishman, before his domicii will be held changed (x). The law will not draw an irresistible inference of an intention exuere patriam from the mere fact of length of residence in a foreign conntry. For where a Scotch- man went out to India in 1805, and died there in 1830, having returned to Scotland only once for a short visit, in 1819 : during the whole of his residence in India he was engaged in trade, at first as a clerk, afterwards as an indigo planter, and finally as a banker • there was no evidence of an intention to return to Scotland until 1814, but from that date there was abundant evidence of a desire, and of an indefinite intention, to return : Held, that his Scotch domicii of origin was never lost 0). (<) Att-Gen. V. Blucher de (x) Moorhouse V. Lord, 32 Wahlstadt, 10 Jur. N. S. 1159; L.J. Ch. 295. 13 W. R. 163, Ex.) 34 L. J. (y) Jopp v. Wood, 13 W. R. Ex. 61. 222; 11 L. T., N. S. 406, R.; (u) Maxwell v. M'Clure, 3 affirmed on appeal, 34L. J., Ch. Macq. H. L. Cas. 852. 212 ; 13 W. R. 481. Digitized by Microsoft® 12 JURISDICTION. Domicii, The testator, bom in France of French parents, change of. became a merchant's clerk at Gibraltar, and in 1830 went to reside at Manchester, to purchase goods for his firm, and he subsequently became a shipping agent there, until his death in 1859: he occupied weekly lodgings and also paid a weekly sum for his board : he paid two visits to his native place (in 1835 and 1846), and in the latter year bought an estate there ; and a solemn act was passed before a notary at his native place for the preservation of his co-hereditary right of succession over some landed property there : In this act he was described as "merchant of Man- chester in England, native of Montory," and his rela- tives (nephews and nieces parties to the deed) de- clared in it that he had not forfeited his hereditary rights to the estate, and that he desired to maintain this right : During the whole time his intention was to return to France and die there, and he always deemed and considered himself a Frenchman and not an Englishman, but he never fixed on any period when his return should take place, and he lived at Manchester with the intention of remaining there for an indefinite period. Held (Pollock, C. B. diss.) that the domicii of the testator was French (z). And where an unmarried Englishwoman left Eng- land at the death of her sole surviving parent in 1849, and went to reside abroad with a married sister in Germany, and continued to reside with her and con- tributing her share towards the expenses of house- keeping, down to her death in Germany, in 1863, never returning to England, except with her sister, on a few occasional visits to relations here ; on leav- ing England, in 1849, she discharged her English maid, and took a German maid into her service, and caused her library of books, her only moveable pro- (t) Capdevielle, In re, 33 L. J. Ex. 306. Digitized by Microsoft® JURISDICTION. 13 perty in England, to be sent to Germany, where she Domicii, kept it at her sister's house ; about two years before her death an additional room to that house was built solely for her accommodation, and in 1854 she named to her sister a churchyard where she wished to be, and where she was subsequently, buried : On the oc- casion of one of her visits to England in May, 1854, she made a will here, disposing of all her property, consisting exclusively of money in the English funds and a cash balance at an English banker's, to English trustees for the benefit of her sister, describing herself in such will as " J. D., now on a visit to my sister, at her residence, No. 1, Cumberland Terrace, Kegent's Park, Middlesex, spinster ;" and which will was proved here : In March, 1854, she had executed a holograph will in Germany, bequeathing all her pro- perty to her sister, and naming the same English trustees ; she often told her sister that if she survived her, she should continue to live in Germany, and that nothing would induce her to return to England, ex- cept on an occasional visit to one of her sisters : Held, that the facts did not amount to sufficient evi- dence of an intention on the part of the testatrix to change her domicii, or that she had in fact changed it, and therefore she still retained her domicii of origin in England (a). But where a testator, whose domicii of origin was Domicii of unknown, held a commission in the English army ; he kDowD. sold out in 1810 and retired to France, where he lived until his death in 1820 ; he had an illegitimate son by a French woman, whom he educated in France ; he made his will in 1819 in the English form, and the will was proved in England ; upon a question as to payment of legacy -duty, held, that the burthen lay upon the Crown to establish an English domicii, and, (a) Att.-Gen. v. Blucher de 13W.R. 163; 31 L. J., Ex. 61. Wahlstadt, 10 Jur. N. S. 1159 ; Digitized by Microsoft® 14 JUEISDICTION. Domicii, failing that, the presumption was in favour of a French change of. domicii (b). Under certain circumstances it was held, that a tes- tator had died domiciled in Jamaica, who had been born in Scotland, but was brought up chiefly in Eng- land, had settled in Jamaica as a planter, and after thirty years had left it and come back to Scotland animo remanendi, but had subsequently left Scotland and gone into business in Liverpool, and had, after a short residence there, returned to Jamaica to wind up his affairs in that place, whence he had written to some of his friends, that he expected to be able to leave that country for ever and return to Great Britain in three years, and had died in Jamaica within a year of his going out (c). W. A., having landed property in Ireland and money in the English funds, fourteen years before his death bought a house in France, where, with the exception of occasional returns to lodgings in England, he con- tinned to reside, and where he died ; he left an Eng- lish will dated 1843, and a French will dated 1848 : Held, that the domicii of W. A. was in France (d). An Irishman went to India and was there resident in business for at least ten years ; he then came to England and lived here for nine years, having taken a house on lease, and furnished it ; being in bad health, he sold his lease and furniture, and went to Madeira, leaving his books and trunks in eare of a person living in London ; he was proved to have expressed himself as intending ultimately to reside in Ireland : Held, that he abandoned his Indian domicii, and acquired an English domicii ; and that he never changed the latter, either for India or Madeira or Ireland (e). (b) United States (President) Sc. Sess. Cas. 1391. v. Drummond, 33 L. J., Ch. (d) Laneuville v. Anderson, 501; 10 Jur. N. S. 533; 10 17 Jur. 511, Pre C. L. T., N. S. 321, R. ; 33 Beav. (e) Att.-Gen. v. Fitzgerald, 4*9- 25 L. J., Ch. 713. (c) Lowndes v. Douglas, 24 Digitized by Microsoft® JURISDICTION. 15 A Scotchman went to India, entered into business Domicii, and resided there for eighteen years ; he then returned to England for the benefit of his health, leaving all his property in India ; he spent eleven months in England and six months in Scotland, having no fixed abode ; after which time he went back to India, made his will, describing himself as T. C, cotfee planter, Mysore, and died in India a few months- after : held, that he had abandoned his domicii of origin and had acquired an Anglo-Indian domicii, which he retained at his death (/). A Frenchman came to London at eighteen, and en- tered into service as a journeyman dyer ; he married an Englishwoman, and, ten years after his arrival in England, started in business in Spitalfields as a master dyer ; he consulted his solicitor with reference to his obtaining letters of naturalization (which however he never obtained), served the office of headborough, and voted at the election of a member of parliament ; he executed his will in the English form, disposing of his property in a manner unauthorized by the laws of France : on the other hand, he paid annual visits to his native place in France, invested a portion of his accumulations in that country, and caused his children to be educated at Lyons. Held, that as the question to be considered was, whether he intended to cease to be a Frenchman and become an Englishman, the evi- dence as to his acts was sufficient to show an inten- tion to that effect, or, in other words, an intention quatenus in Mo exuere patriam () Midgley v. Wood, 30 L. J., P. M. & A. 43. Digitized by Microsoft® 94 DISCRETIONARY DEFENCES IN DISSOLUTION. Coll usion When not pleaded. In an undefended suit for dissolution of marriage on the ground of the adultery of the wife, it appeared at the hearing that the wife had given the petitioner's solicitor a photograph of herself, and attended in Court at the hearing to aid in her identification, and, for so doing, received money from the solicitor : The Court notwithstanding, being satisfied that there was no col- lusion between the petitioner and the respondent, pro- nounced a decree nisi (*). The defence of collusion would be probably open to a respondent or co-respondent in the same manner when not pleaded, as that of connivance, and subject to the same observations. It must be remembered that in. pleading it, the 31st rule cannot be observed, and an application to the Court should be made to dis- pense with it. 20 & 21 Vict. c. 85, s. 31. Adultery of petitioner, how affected by condona- tion. DISCRETIONARY DEFENCES IN DISSOLUTION. " The Court shall not be bound to pronounce such decree" (of dissolution of marriage) " if it shall find that the petitioner has, during the marriage, been guilty of — " I. Adultery. — Notwithstanding the decisions of Seller v. Seller (t) and Anichini v. Anichini (u), it appears from the words of the Act that, in cases of dissolution of marriage, the Court has to decide whether or not the petitioner has been guilty of adul- tery during the marriage, and if the respondent con- doned such adultery, such condonation would not bind the Court, but that a case for the discretion of the Court would arise (x). For where the petitioner has been guilty of adultery, &c, the Court may, in the (s) Harris v. Harris, 31 L. J., P. M. & A. 160. (0 28 L. J., P. & M. 99. (a) 2 Curt. 210. (x) Allen v. Allen, 28 L. J., P. & M. 81. Digitized by Microsoft® DISCRETIONARY DEFENCES IN DISSOLUTION. 95 exercise of the discretionary power vested in it by Adultery, the 31st section (y), refuse to decree a dissolution of marriage, though such adultery, &c, may have been condoned (z). The first of the above cases (Seller v. Seller) was a suit for a judicial separation, and the other (Anichini v. Anichini) was in the Ecclesiastical Court, and therefore hardly to be considered binding authorities in cases for dissolution of marriage, as the present Court is expressly excepted, in cases for dissolution of marriage, from proceeding on the prin- ciples of the Ecclesiastical Courts (a). The House of Lords seems formerly to have recog- nized a distinction between adultery committed by a petitioner prior to that complained of, and adultery committed subsequent ; and to have rejected evidence of the petitioner's adultery, if it had been committed subsequent to that complained of(6). But if the recriminated adultery took place prior to that com- plained of by the petitioner, the House always re- jected the bill (c). This distinction has not, however, been followed by the Court for Divorce. In Lautour v. Lautour (d), which was affirmed in its principle on appeal by the House of Lords, the petitioner was held to be dis- entitled to relief on account of adultery committed subsequent to his wife's elopement. No doubt much stress was laid in that case on the fact that the peti- tioner had lived for twenty years in adultery. It is therefore no longer safe to rely on any such distinc- tion. Although where a petitioner for a decree of dissolution "has committed adultery the Court has a discretion to grant a divorce, that discretion must be (ji) Allen v. Allen, 28 L. J., 1799, Macq. H. of L. Pr. 590. P. & M. 81. (c) Major Bland's case, 1808, (z) Goode v. Goode and Ham- Macq. H. of L. Pr. 605 ; Sim- son, 30 L. J., P. M. & A. 105. man's Div. Bill, 12 CI. & Fin. (a) 20 & 21 Vict. c. 85, ». 22. 339. (6) Major Campbell's case, (d) 33 L. J., P. M. & A. 89. Digitized by Microsoft® 96 DISCRETIONARY DEFENCES IN DISSOLUTION. Adultery. rarely exercised " (per Wilde, J. O., Clarke v. Clarke and Clarke, infra). For where at the hearing of a suit by a husband for dissolution of marriage, the petitioner, after his case had been proved, tendered himself for examination under the 43rd section of 20 & 21 Vict. c. 85, and con- fessed that on one occasion, during a temporary sepa- ration from the respondent, he had been guilty of an act of adultery, the Court refused a decree (d). But where a husband, believing that his wife (who had eloped from him and was living in adultery) was dead, married another woman and committed adultery with her, the Court in the exercise of the discretion vested in it by sect. 31 of 20 & 21 Vict. c. 85, granted the husband a divorce notwithstanding his adultery (e). And where in a suit by a wife for a dissolution of marriage, it was proved that the respondent had been guilty of adultery and cruelty, and also that he had by threats and by personal violence, coerced the peti- tioner into leading a life of prostitution, and had lived upon the money which she obtained by prostitution : the Court being satisfied that she had led this life, contrary to her own will and desire, and in conse- quence of the coercion of the respondent, exercised the discretion given to it by the 31st section of the 20 & 21 Vict. c. 85, by dissolving the marriage not- withstanding her adultery (f). The Ecclesiastical Courts always held that divorce by reason of adultery was barred by compensatio criminis committed after the adultery of the respon- dent (gr). See BestY. Best, 1 Add. 411; Astley v. Astley, 1 Hag. 714 ; Beeby v. Beeby, 1 Hag. 790 ; (d ) Clarke v. Clarice and (f) Coleman v. Coleman, 1 Clarke, 31 L. J., P. M. & A. L. Rep. 81 ; 35 L. J., P. M. & 91. A. 37. (e) Joseph v. Joseph, 34 L. (g) Proctor v. Proctor, 2 Hag. J., P. M. & A. 96. Con. C. 292. Digitized by Microsoft® DISCRETIONARY DEFENCES IN DISSOLUTION. 97 Harris v. Harris, 2 Hag. 376 ; Timmings v. Tim- Adultery. mings, 3 Hag. 72. But the doctrine of compensatio criminis is not the law of England (see Hope v. Not the law ,,__,. ° v r of England. #ope, 27 L. J., P. & M. 27). The Ecclesiastical Courts also held that where adultery was pleaded by Evidence of J r J recriminated way of recrimination only, it was not necessary to adultery. prove such strong facts against the petitioner as would be required to convict the other party in a suit for divorce (A). Sir William Scott says the general con- duct of the husband as shown is quite sufficient to " support a plea" (of adultery) " in bar, though not sufficient to support an original accusation of adul- tery" (i). It is doubtful, however, how far the Court Distinction between suits will now observe these doctrines in suits for dissolu- for dissolu- tion and tion of marriage, as the statute requires the Court to other suits. find whether the petitioner has been guilty of adul- tery, although the Ecclesiastical Courts seem to have held, that the improper conduct of the husband, shown imder a counter plea of adultery, by evidence which failed to amount to full proof of adultery, was suffi- cient to bar him of his remedy. For in cases where the principles of the procedure of the House of Lords is at variance with that of the Ecclesiastical Courts, in suits for dissolution of marriage, the authority of the House will be preferred, while in all other suits the principles of the Ecclesiastical Courts, whose jurisdiction it inherits, will be observed by this Court (k). II. Unreasonable Delay. — '■' Or if the petitioner unreason- shall, in the opinion of the Court, have been guilty of unreasonable delay in presenting or prosecuting such petition." " The Court will be indisposed to relieve a party who appears to have slumbered in sufficient (h)LordLeicester'scase,Sess. Con. C. 152. 1737, cited in Forster v. Forster, (ft) 20 & 21 Vict. u. 85, s. 1 Hag. Con. C. 153. 22. (i) Forster v. Forster, 1 Hag. Digitized by Microsoft® 98 DISCBETIONABY DEFENCES IN DISSOLUTION. Want of means. ml deSV comfort over them" (i. e., the criminal fact and the effect of. knowledge of it by the complaining party), "and it will be inclined to infer either an insincerity in the complaint, or an acquiescence in the injury, whether real or supposed, or a condonation of it"(£) (Lord Stowell). Delay is not of itself a bar to the suit; " but it is a most material matter, which, unexplained, would lead the Court to conclusions fatal to the petitioner's relief" (m) (Per Cresswell, J. 0.). But where, in a suit by a wife for dissolution of marriage, Excuses for. adultery and cruelty were proved, but there was no evidence of any misconduct subsequent to the year 1844 ; and from that time until shortly before the year 1863, when the petition was filed, the wife was without means of instituting a suit in the Ecclesias- tical Court or in this Court : it was held, that she had not been guilty of unreasonable delay (»). A lapse of nine years from the admitted discovery, and nineteen years from the fact, of the wife's adul- tery, was not a bar to the petitioner's right to a di- vorce a vinculo, he having shown that he was not able, from want of funds, to apply to Parliament sooner (o). Petitioner unable from poverty to take proceedings at law within Statute of Limitations; adultery shown to have existed in 1829 ; petition for divorce in 1840 ; delay accounted for by poverty. Bill passed (p). See Martin's Divorce Bill, Sess. 1847, 79 H. of L. Journ. 72 ; Morgan's Divorce Bill, 1847, 79 H. of L. Journ. 261, and Cripp's case, Sess. 1849, 81 H. of L. Journ. 244 ; Best v. Best, 2 Phill. 164. Action at law and proceedings in Ecclesiastical Court immediately on wife's elopement, but petitioner did not apply to Parliament for divorce for five years ; Husband's affliction. (I) Mortimer v. Mortimer, 4 Hag. Con C. 313. (m) Boulting v. Boulting, 33 L. J.,P. M. & A. 33. (n) Harrison v. Harrison, 33 L. J., P. M. & A. 44. (o) Dr. Lardner's case, 6 CI. & F. 569. (p) Mr. Warr's case, Macq. H. of L. 666. Digitized by Microsoft® DISCRETIONARY DEFENCES IN DISSOLUTION. 99 Held, delay sufficiently accounted for by wife's absence Unreason- . able delay. m America, and by inability of husband, in conse- quence of bis affliction, to attend to any business (q). Acknowledged malfeasance of petitioner's agent Malfeasance L ° of petition- accounted for two years' delay (r). er'« agent. Unreasonable delay " must be delay from which it would appear that the petitioner was insensible to the loss of his wife" (*) (Per Wightman, J.) Delay may be not unreasonable, proceeding from the Misappre- . hension of petitioner's misapprehension of the law (f). the ' aw - And where a husband upon the discovery of his Abandon- wife's adultery, commenced a suit for divorce against vious suit, her, but abandoned it through want of funds, the Court held that he was not thereby debarred from seeking a divorce at a subsequent period (u). III. Cruelty. — " Or if the petitioner shall, in the cruelty, opinion of the Court, have been guilty of cruelty towards the other party to the marriage." # Where the jury, on the issues submitted to them in a suit for dissolution of marriage by the husband against the wife, found that the respondent was guilty of adul- tery, and the petitioner guilty of cruelty to the respon- dent, brought on by her drunkenness, the Court made a decree dissolving the marriage : Semble, the cruelty Must lead to -.-. -i n. , ,• •!! • tue adultery. contemplated by the 31st section will, in most cases, be taken to mean such cruelty as has led to the adul- tery alleged in the petition (x). In a suit by a wife against her husband for dissolu- tion on the ground of his adultery, coupled with cruelty and desertion, the husband was proved to have been guilty of adultery, but of no other misconduct ; and (q) Heaviside's Div. Bill, 12 (t) Tollemache v. Tollemache CI. & F. 333. 1 Sw. & Tr. 557. (r) Wyndham's Div. Bill, (u) Cood v. Cood, 1 Curt. Sess. 1855. 755. . (s) Pellew v. Pellew, 29 L. (x) Pearman v. Pearman, 29 J., P. M. & A. 44. L. J., P. M. & A. 54. P 2 Digitized by Microsoft® 100 Crnelty. Desertion. Wilful separation. What is " reasonable excuse." DISCRETIONARY DEFENCES IN DISSOLUTION. the wife was proved to hare been guilty of cruelty, and of wilful separation from the respondent, before his adultery and without reasonable excuse, and of wilful neglect and misconduct conducing to his adultery ; the Court refused to grant a decree of judicial separation on the ground of the husband's adultery, and, in the exercise of its discretion, under the 31st sect, of the 20 & 21 Vict. c. 85, dismissed the petition (y). As for what is cruelty, see tit. Cruelty, p. 26. Though the cruelty perhaps need not be so much as that required to found a decree of dissolution or ju- dicial separation. rV. Desertion. — " Or of having deserted." Deser- tion, when pleaded in bar, need not be desertion for two years, or for any specific period ; in other respects as to what is desertion,teee m.,Ij(esertiaf, p. 37. It is equivalent to being lefisjp\,q$|ffiite (z)/ Wilful separation.^-" Of^s&fully separated him- self or herself from the,other=party, before the adultery complained of, and without reasonable excuse." Where the petitioner charged her husband with adultery and cruelty, and prayed for a dissolution of the marriage, the respondent denied both the adultery and cruelty, and further stated that the petitioner had habitually treated him with insolence and neglect, set his orders and wishes at defiance, and for two years wilfully absented herself from his residence ; on an application that the answer be amended by striking out the latter part : it was held, that it was properly introduced, as explanatory of the violent conduct at- tributed to the respondent (a). Seasonable excuse. — " Every answer, as adultery, cruelty, &c, to a suit for restitution of conjugal rights, . (y) Boreham v. Boreham, I L. R. 77 ; 35 L. J., P. M. & A. 49. (z) Haswell V. Haswell, 29 L. J., P. M. & A. 21. (a) Hughes v. Hughes, 35 L. J., P. M. & A. 94. Digitized by Microsoft® JUN DISCRETIONARY DEFENCES IN DISSOLUTION. 5 J 1 101 -. '930 is a reasonable excuse." See tit. Defences ^toSui^, for Restitution of Conjugal Rights, p. lllv /j> UBfti^ . Matters also which might be no answer to a suiFTor restitution of conjugal rights are " reasonable excuses.'' Husband found wife submitting to indecent liberties, held reasonable excuse (b). Absenting for the pur- Excuse for. pose of obtaining employment (c), a reasonable excuse, Living unhappily with wife, who had been a pros- titute, and supplying her with no means of subsist- ence, no reasonable excuse (d). A girl sixteen years of age left her home one morning, and, without the knowledge of her friends, married a man aged thirty-six, with whom they were unacquainted. Im- mediately after the ceremony she returned home, and informed her mother of the marriage. Inquiries having been made as to the character of the husband, it was found he was not a suitable husband for her. Her friends immediately removed her to the continent, where she remained some time, and never saw him again, nor did he make any attempt to get her to live with him : Held a reasonable excuse for separation (e). A young man who had just taken his degree at Cam- bridge, married a prostitute, and never afterwards co- habited with her. He had no means of providing a home for her, or of contributing to her support, and the day after the marriage he separated from her, and went to live with his father, who, on being informed of the marriage some months afterwards, caused a deed of separation to be executed, by which an allowance May be rea . of 11. a week was secured to her ; this allowance was though' paid by the husband's father. After the execution of W1 the deed, the wife was guilty of adultery : in a suit by the husband for dissolution of marriage it was held, (J) Hughes v. Hughes, 35 L. (d ) Coulthart v. Coulthart, J., P. M. & A. 94. 28 L. J., P. & M. 21. (c) Thompson v. Thompson, (e) Bu Terreaux v. Du Ter- 27 L. J., P. & M. 65. reaux, 28 L. J., P. & M. 95. Digitized by Microsoft® 102 DtSCRETIONAKY DEFENCES IN DISSOLUTION. Desertion. Neglect or misconduct. that the separation if wilful was not without reason- able excuse, and that the petitioner was entitled to a decree {/)• " It must not be supposed that a husband can neglect or throw aside his wife, and afterwards, if she is un- faithful to him, obtain a divorce on account of her in- fidelity" (fif) (Per Cresswell, J. O.). In answer to a suit for judicial separation on the ground of desertion, the respondent may set out facts, showing that there was reasonable cause for the de- sertioD, but such facts should be stated succinctly (h). V. Neglect or Misconduct. — " Or of such neglect or misconduct as has conduced to the adultery." Though husband remiss, his remissness must conduce to the adultery (i). The wilful misconduct must directly conduce to the adultery, and be a breach of marital duty. Therefore where A. was, shortly after his marriage, convicted of felony, and sentenced to trans- portation, and his wife became unfaithful in consequence of his absence, while undergoing his sentence : Held, that the felony was not wilful misconduct, within the meaning of the act (K). Where Gr., with his wife, re- sided with his mother, and the wife, in consequence of disagreeing with her mother-in-law, left the house with Gr.'s consent, and G. resided apart, allowing her a small sum weekly, and visited her only occasionally, and only slept with her three times ; on calling at her lodgings he frequently found her absent at eleven or twelve o'clock at night, she having no occupation which necessitated her absence, but he made no in- quiries as to the mode in which she spent her time, nor remonstrated with her : Held "wilful neglect" (7). (/) Proctor v. Proctor, 31 L. J., P. M. & A. 99. (s) Jeffreys v. Jeffreys and Smith, 33 L. J., P. M. & A. 84. (A) Hill v. Hill, 33 L. J., P. M. & A. 187. (i) Badcock v. Badcock, 31 L. T. 268. (ft) Cunnington v. Cunning- ton, 28 L. J., P. & M. 101. (1) Groves v. Groves, 28 L. J., P. & M. 108. Digitized by Microsoft® DEFENCES IN SUITS FOE JUDICIAL SEPAEATION. 103 Where the petitioner, having married a woman of Neglect. loose character, in a short time separated himself from her without reasonable cause, and induced her to reside away from her friends in a place where she was espe- cially liable to temptation : Held, that he had been guilty of misconduct which conduced to adultery, and that the petition must be dismissed (m). Where the husband had been in the habit of going with his wife and the co-respondent to places of amuse- ment and of allowing her to dance frequently with the co-respondent there, and then leaving her in the care of the co-respondent, the Court held this to be "con- duct conducing to the adultery," and as such, was a material fact which ought to have been brought before the Court (n). The " misconduct " must be misconduct after marriage (o). But where the adultery of the wife is proved, the Court will not refuse to decree a divorce, unless some act of misconduct specified in the 31st, section is established. And where a husband in 1842 married a fellow-servant, and continued with her in the same service till 1846, when, in order to improve his position, he left and took another situation, and his wife remained in the same place, and there formed an adulterous connexion with a fellow-servant, and it did not appear that the petitioner, from the time he left his wife, had ever visited or communicated with her : Held, the petitioner was entitled to a divorce (p). DEFENCES IN SUITS FOR JUDICIAL SEPAEATION. Adultery of Petitioner. — "The Court withholds from a guilty husband the remedy against a guilty (m) Baylis v. Baylis, 36 L. (o) Allen v. Allen, 28 1. J., J., P. & M. 89. P. & M. 81. (n) Barnes v.Barnes, 37 L. (p) Davies v. Davies,S2 L. J., J., P. 8s M. 4. P. M. & A. 111. Digitized by Microsoft® 104 DEFENCES IN SUITS FOK JUDICIAL SEPARATION. Adultery of petitioner. Distinction between judicial se- paration and dissolution. Injudicial separation adultery an absolute bar. No distinc- tion between adultery be- fore or after cause of complaint. Less proof required. wife, and vice versa" (q). The defence of a counter- charge of adultery in a suit for judicial separation, has several important distinctions from a similar defence in a suit for dissolution of marriage (r). First, it is discretionary for the Court, in suits for dissolution of marriage, to dismiss the petition or not, where the pe- titioner's adultery is proved ; but in a suit for judicial separation, it is generally obligatory on it to dismiss the petition (s), unless there be extenuating circum- stances (t). Secondly, there is (in suits for judicial separation) "no distinction between a delinquency of the husband (or wife) committed before or after a wife's (or husband's) infidelity in its complete efficiency as a bar to a claim of" judicial separation (u). But the House of Lords have held differently in bills for di- vorce (y), and the present Court may probably feel itself bound by their decision in cases of dissolution (x) ; but see Latour v. Latour, 10 Jur., N. S. 325 ; and remarks above. Again : the Ecclesiastical Courts (whom now the present Court will follow in suits for judicial separa- tion) held that, where adultery is pleaded by way of recrimination only to a bar, it was not necessary to prove such strong facts against the plaintiff, as are re- quired to convict in an original charge, and that evidence of improper conduct, which failed to substantiate the full charge of adultery (y), given under a counter plea of recrimination, was sufficient to bar the husband of his remedy. But there seems to be no authority for this position in suits for dissolution of marriage (z). (?) Forster v. Forster, 1 Hag. Con. C. 146. (r) 20 & 21 Vict. t . 85, ss. 22, 81. (s) Astley v. Astley, 1 Hag. 722; Beeby v. Beeby, 1 Hag. 790. {t) Anichini v. Anichini, 2 Curt. 214. («) Proctor v. Proctor, 2 Hag. Con. C. 299. (v) Major Campbell's case, 1799, Macq. H. of L. Pr. 590. {x) 20 & 21 Vict. u. 85, s. 22. (y) Forster v. Forster, 1 Hag. Con. C. 153 ; Astley v. Astley, 1 Hag. 721. («) Vide supra, p. 94, De- fence to Dissolution of Mar- riage, tit. Adultery of Petitioner. Digitized by Microsoft® DEFENCES IN SUITS FOE JUDICIAL SEPARATION. 105 The improper conduct might then indeed amount to Adultery of petitioner. misconduct, such as had conduced to the adultery of the respondent ; but that is a distinct plea, and a dif- ferent consideration altogether. In other respects, for the defence of recrimination, see Defences to Petition for Dissolution of Marriage, tit. Adultery of Petitioner, p. 94. But where the ground of the petition is cruelty, it is questionable whether adultery is pleadable in bar (a), it would seem it is not. At all events, a mere charge is insufficient: for a wife, having obtained a verdict in a suit for judicial separa- tion on the ground of cruelty, in which she was the petitioner, is entitled to a decree of judicial separation, notwithstanding the pendency of a cross suit by the husband for dissolution (b). Where A. (the husband) and B. (the wife) were married in 1845, and lived together till 1853 ; in a suit brought by A. against B. for adultery, B. pleaded her virginity and recriminated. A. admitted that he had not consummated the marriage, and the medical evi- dence proved the virginity. Held, that B. was not guilty of adultery, and was entitled to a separation from A. on the ground of his adultery, which was proved (e). Cruelty. — To a suit by a husband for judicial sepa- cruelty. ration by reason of adultery, cruelty is no bar, even though it should be pleaded, that it was committed with the ulterior design of getting rid of the wife(rf). Indifference, ill behaviour, or cruelty are not plead- No answer able in bar to a suit for judicial separation charging of adultery in judicial adultery (e) ; they will not justify the wife's criminal separation. misconduct (f). Cruelty, therefore, which is a dis- (a) Hall v. Hall, 32 L. J., 411 ; Dillon v. Dillon, 8 Curt P. M. & A. 117; Cocksedge v. 9*. Cocksedge, 1 Robert. 90. (c) Moorsom v. Moorsom, 3 (b) Bancroft v. Bancroft, 34 Hag. 92. L. J., P. M. & A. 70. (/) Chambers v. Chambers, 1 (c) Hunt v. Hunt, 1 Dea. & Hag. Con. C. 439 ; Tuthill v. Sw. Ecc. Cas. 121. Tuthill, 31 L. J., P. M. & A. (d ) Harris v. Harris, 2 Hag. 214. F 5 Digitized by Microsoft® 106 DEFENCES IN SUITS FOE JUDICIAL SEPARATION. Cruelty. An answer to judicial separation on other grounds. cretionary bar to a suit for dissolution of marriage on the ground of adultery, is no answer to a suit for judicial separation on the same ground. But the plea of cruelty is admissible when coupled with adultery, and with a prayer for separation ( g), though not when standing alone. " It has no absolute effect, but a very " proper relative effect where infidelity on the part " of the husband is likewise charged, because it adds " to the probability that such a charge is well " founded" (A). Cruelty is not a bar to a charge of adultery ; but may be pleaded as introductory to the history of an adulterous intercourse (i). It may, how- ever, be an answer to a petition for judicial separa- tion on other grounds, as, for instance, as to a petition for judicial separation, on the ground of desertion. See Defence for Restitution of Conjugal Eights, tit. Cruelty. The principal other defences are — Connivance. Condonation. Collusion. Desertion. A plea that the petitioner without reasonable cause withdrew from the bed of the respondent, and refused to render conjugal rights, standing alone and without any allegation of other misconduct, is no bar to a suit for judicial separation on the grounds of adultery and cruelty, and will therefore be struck out (A). Wilful Separation. Separation by articles or agreement has never been considered a bar to a suit for divorce a mensa et thoro, by reason of adultery (I). (g) Cocksedge v. Cocksedge, 1 Robert. 92. (h) Forster v . Forster, 1 Hag. Con. C. 146 ; Eldred v. Eldred, 2 Curt. 380. (t) Arkley v. Arkley, 3 Phill. Ecc. L. 500. See Chettle v. Chettle, 3 Phill. Ecc. R. 507. (i) Rowe v. Rowe, 34 L. J., P. M. & A. 111. (I) Nash v. Nash, 1 Hag. Con. C. 140. Digitized by Microsoft® DEFENCES IN SUITS FOE JUDICIAL SEPARATION. 107 Separation was not considered by the Ecclesiastical Separation. Court as a bar to divorce (a mensd et ihoro) for adultery, either previous to or subsequent to the act charged : it was not an answer to such a charge even in cases of malicious desertion : but in cases of voluntary sepa- ration it would be more unreasonable that the wife should be at liberty to impose a spurious issue on the husband (m). But in answer to a charge of cruelty and a prayer for judicial separation, the respondent may allege that the parties have been living apart under the sanction of a deed executed by them, not as a direct bar to the suit, but as a fact, amongst others, to show that the petition was not presented with a bond fide inten- tion to obtain protection, but for a collateral pur- pose (n). It appears that, as in the case of cruelty, neither of other de- these two last defences are bars to the husband, when the suit is for judicial separation on the ground of the adultery of the wife (o), though they would be dis- cretionary bars, if the suit were for dissolution of marriage (p). As to the above defences, in other re- spects, see under these repective heads, in Defences to Dissolution of Marriage. Another defence may be (by way of estoppel) res Estoppel. judicata, as a spouse, in a case which has already been heard by the Ecclesiastical Courts, whether there has been a decree or the suit has been dismissed, cannot maintain a suit for judicial separation on the same grounds {q). A decree for separation is not barred by mere forbearance or delay in instituting proceedings, (m) Beeby v.Beeby, 1 Hag. Phill.125; Sullivan v. Sullivan, Con. C. 142, notis. 2 Add. 302. («) Williams v. Williams, 35 ( p) 20 & 21 Vict. c. 85, s. L. J., P. M. & A. 85. 31. (o) Morgan v. Morgan, 2 (q) Ciocci v. Ciocci, 29 L. J ., Curt. 686 ; Reeves v. Reeves, 2 P. M. & A. 60. Digitized by Microsoft® 108 DEFENCES TO A SUIT OF NULLITY. Delay how on the part of the -wife(r). Delay is not a bar to the far a bar. r ^ J suit, but in a suit for judicial separation, on the ground of cruelty, it is a material fact for the consideration of the Court, as tending to show that there was no serious apprehension of further violence (*), or that the suit was instituted for some collateral object (t). Though lapse of time is not an absolute bar to the wife's suit for judicial separation on the ground of cruelty, yet, if in connection with other circumstances it satisfies the Court that the suit is brought not for the protection of the petitioner, but for some collateral purpose, the petition will be dismissed (u). And where the misconduct was charged as having existed for thirty years and the suit was commenced in Michaelmas Term, 1812, and a proxy was exhibited by the wife's proctor, and no further proceeding took place till Michaelmas Term, 1813, the Court under the circumstances dismissed the petition (x). Nor Supervening does an impediment to marital intercourse, super- iiupolence. vening alter marriage, constitute a defence for a suit instituted in consequence of adultery (y). DEFENCES TO A SUIT OF NULLITY. Cruelty no answer. A charge of cruelty, with a prayer for judicial separation, cannot be made in answer to a petition for sentence of nullity of marriage (z). Nor where the husband brought a suit of nullity by reason of impo- Nor adultery, tency, against the wife, could she plead the husband's adultery at that stage of the cause (a). Indeed, it (r) Ferrers v. Ferrers, I Hag. Con. C. 134 (and cases there cited in the note). (s) Smallwood v. Smallwood, 31 L. ■)., P. M. & A. 3. (0 Cooke v. Cooke, 32 L. J., P. M. & A. 81. (h) Matthews v. Matthews, 3 Sw. & Tr. 161. (x) Walker v. Walker, 2 Phill. 155. (y) M— v. M— , 31 L. J., P. M. & A. 168. (z) Humphrey V. Williams (falsely calling herself Hum- phrey), 29 L. J., P. M. & A. 62. (a) Anon, Dea. & Sw. Ecc. Cas. 296. Digitized by Microsoft® DEFENCES TO A SUIT OF NULLITT. 109 seems difficult to see what defence can be pleaded to this suit except a traverse, when the ground of peti- tion is one of the essential requisites to marriage specified as III. and IV., in Grounds for Petition of Nullity, p. 42. Where M. petitioned for a decree of nullity by reason of the alleged frigidity, &c, of H. (the man), owing to which the alleged marriage had not been consummated, H. traversed the alleged frigidity, °!'J e tJ ) i °" n 1 . y &c. ; and at the hearing gave evidence that the non- summation, consummation was caused by the pain felt and distress expressed by M. when he attempted to have connec- tion : the evidence was objected to on the ground that such cause of non-consummation should have been alleged in the answer, the Court admitted the evi- dence, saying, that evidence in reply might be called, if the Court should think that the petitioner was taken by surprise (h). It is true that, in suits grounded on impotence, cases Delay, how might occur where long acquiescence with knowledge answer, would operate as a bar to the prosecution of such a suit ; and, more especially, if the circumstances showed that the suit was brought not on account of the evils resulting from the imperfection, but for other and different reasons (c). Where a delay of some years occurs in bringing a suit for nullity by reason of im- potence or malformation the Court will require an explanation of such delay (d ). And where M. mar- indirect ried B. in August, 1 853, and slept in the same bed with him for about two years, when, at his request, she occupied a separate room, but lived in his house till June, 1863, when she left it; and in the early part of 1864, petitioned for a decree of nullity, by reason of B.'s impotence, the medical evidence showed her to be a virgin ; B. did not submit him- (6) M— (falsely called H-) Con. C. 330. v.H-, 3 Sw. & Tr. 517 i 33 (d)E — v.T— (falsely called L. J., F. M. & A. 159. E-) 3 Sw. & Tr. 312. (c) Briggs\. Morgan, 2 Hag. Digitized by Microsoft® 110 DEFENCES TO A SUIT OP NULLITY. Delay with self to inspection : the Court held that the lapse of indirect mo- tives, time coupled with indirect motives in bringing the suit (mentioned in the judgment) disentitled the peti- tioner to the relief sought (e). Where the parties were married in 1834, and lived together till 1838, when the husband, the respondent, went away, not having consummated the marriage through impotence, " and the petitioner, with full knowledge of the respondent's condition, for sixteen years after the separation continued to press him to receive her back to cohabitation ; after that contracted debts, and procured the creditors to enforce payment from him as her husband, — a proceeding wholly incon- sistent with the present, and a sort of moral estoppel against a subsequent allegation, that he was not her husband : — Held by Cresswell, J. O., and Williams, J., Bramwell, B., dissentiente, that she was not entitled suit brought to a decree of nullity" (/"). Where a husband having alio intuitu. . been about eighteen years married, and having con- stantly cohabited with his wife for several years, in- stituted a suit for nullity by reason of the incurable malformation of his wife ; it was held, — 1st., that time alone will not, but, coupled with other facts proving insincerity, will operate as a bar to such a suit : — 2ndly, that lapse of time must be accounted for : — 3rdly, that the evidence in the case did not sufficiently account for lapse of time, but showed partial connec- tion to have taken place between the parties, and that the suit was instituted alio intuitu: and that the husband was not entitled to a decree under the cir- cumstances ( Clark v. Clark, 31 L. J., P. M. & A. 61. (/) Billingay v. Billmgay and Thomat, 35 L. J., P. M, & A. 81. Digitized by Microsoft® DAMAGES AGAINST ADULTERER. 123 jury, should be applied, in the first instance, to the Damages, payment of so much of the petitioner's costs out of pocket, as should not be taxed against the co-respond- ent, and that the residue should be settled on the respondent for life, dum casta vixerit ; and after her death, or on the breach of that condition, upon the issue of the marriage ( g). In one case a provision was made out of damages for a child born after the separation of the petitioner and respondent, although it was supposed that it was the child of the co- respondent (h). In a suit by a husband for dissolution of marriage, an order having been made that a portion of the damages should be settled on the wife for life dum casta vixerit, the Court refused afterwards to vary the order by making the wife's interest continue only dum . casta et innupta vixerit (i). Where damages awarded s pee dy by a jury against the co-respondent, in a suit by the paymen • husband for dissolution, had been ordered to be paid to the petitioner, and it appeared that he was in danger of losing them, the Court ordered that they should be paid within ten days of the service of the order (k). But the Court has no power to order immediate execu- tion for their recovery (I), nor that the co-respondent pay them into Court (m). Where it was proved, on the hearing of a petition, that there had been no issue of the marriage, and that at the time of the hearing the respondent was living with the co-respondent, the court made the order for the payment to the petitioner of the damages assessed (g) Narracott v. Narracott, man, 30 L. J., P. M. & A. 189. 33 L. J., P. M. & A. 132. (I) Pounsford v. Pounsford (h) Caldwell v. Caldwell and and Bulpin, 30 L. J., P.M. & A. Kennedy, 3 Sw. & Tr. 259. 188. (j) Narracott v. Narracott, (m) Forster v. Forster and 3i L. J.. P. M. & A. 54. Berridge, 32 L. J., P. M. & A. (A) Bent v. Bent and Foot- 133. G2 Digitized by Microsoft® 124 DEFENCE OF CO-RESPONDENT, ETC. against the co-respondent part of the decree nisi, instead of postponing it until the decree absolute (n). Petitioner's marriage void. Separation of the petitioner and respon- dent. Distinction between crim. con. and present proceeding. DEFENCE OF CO-RESPONDENT TO A CLAIM FOR DAMAGES. A co-respondent may set up any defence to the petitioner's claim, that a defendant in an action of crim. con. might have done, whether in bar of the action, or by way of mitigation of damages. He may show that the marriage of the petitioner is void for any of the reasons set forth in grounds for Nullity of marriage, p. 43, et seq. Under the old law it was a matter of some doubt, whether proof that the husband and wife were living separate by consent was a defence to the action. In Weedon v. Timbrel, 1 Esp. 16 ; S. C, 5 T. E. 357 ; and Bartelot v. Maw- her, Peake Ca. 7, Lord Kenyon held, that it was an answer. But in Hodges v. Windham, Peake, Ca. 39, and Chambers v. Caulfield, 6 East, 248, consider- able doubts are thrown on that position. However, there can be no doubt that such evidence would be most material under the recent act, where the claim for damages is included in the petition for dissolution of marriage, as it might be a discretionary bar to the principal petition. For a defence which could not have been pleaded to an action for crim. con. is not precluded by the 33rd section from being pleaded to a petition by the insertion of a claim for damages ; the meaning of that section being, that in such a case the question of damages is to be dealt with, not that the record is to be framed in the same manner as in actions for crim. con. (o). (n) Evans v. Etans and Bird, (o) Seddon v. Seddon and 1 L. R. 36. Doyle, 30 L. J., P. M. & A. 12. Digitized by Microsoft® CUSTODY OF CHILDKEN. 125 The connivance of the petitioner at the adultery Connivance of petitioner. complained of, is also a defence. Where the jury- found adultery and connivance on the part of the peti- tioner and assessed damages against the co-respondent at 501., "the co-respondent was entitled to he dis- missed from the suit, on the ground that, as the plea of connivance would have been a bar to an action of crim. con. it is also a defence to a claim for damages'' (per Sir C. Cresswell) O). One of the few instances where a judgment by Effect of co-respon- default is allowed in this Court appears to be where dent not ap- pearing. a claim for damages is made against a co-respondent. For where the co-respondent does not appear, the jury must assess damages, though they find a verdict on. the issue of adultery raised between the husband and wife in favour of the latter (q). This somewhat in- consistent result seems to arise from the words of the statute which assimilates such claims to actions of crim. con. (r). CUSTODY OF CHILDREN. "In any suit or other proceeding for obtaining a interim 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 its final decree, as it may deem Provision on final decree. just and proper, with respect to the custody, mainte- nance, and education of the children, the marriage of whose parents is the subject of such suit or other proceeding, and may, if it shall think fit, direct proper proceedings to be taken for placing such ( p) Ellyatt v. Ellyatt, Tay- Ion, 3 Sw. & Tr. 608. lor $ Halse, 3 Sw. & Tr. 503. (r) 20 & 21 Vict. c. 85, s. {q) Stone v. Stone and Apple- 33. Digitized by Microsoft® 126 CUSTODY OF CHILDREN. children under the protection of the Court of Chan- cery'' (r). Between de- In the interval between a decree nisi for dissolution crees nisi and , . . -, -, . . . j absolute. of marriage being pronounced and its being made absolute, the only order the Court can make as to the custody of children, is an interim order under this section (s). It seems where the Court is asked under this section to make a provision as to the custody of children in its " final decree," for a judicial separa- tion, that question must be gone into at the hearing of the suit, and cannot be made the subject of a separate hearing (t). Under the latter part of the above sec- tion, all applications for the custody, &c, of children are final («). The Court will not, at the hearing of a suit, order that the petitioner have the custody of the children of the marriage, unless the petitioner prays for such custody (x) in his petition. But the father is entitled at common law to the custody of the child at its mother's breast. And the Court in making an interim order will not, unless good cause be shown, take away his right (y). And it has jurisdiction, pendente lite, also to order that one of the parties to Mere access, the suit shall have access merely, to the children of the marriage (z). After final " The Court, after a final decree of judicial sepa- decree ration, nullity of marriage or dissolution of marriage, may, upon application (by petition) for this purpose, make, from time to time, all such orders and provi- sions 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 (r) 20 & 21 Vict. c. 85, s. 35- (x) Boddy v. hoddy and (s) Cubley v. Cubley and Grover, 30 L. J., P. M. & A. Smith, 30 L. J., P. M. & A. 163. 161. (y) Cartledge v. Cartledge, (<) Curtis v. Curtis, 27 L. J., 31 L. J., P. M. & A. 85. P. & M. 74. (z) Thompson v. Thompson,3l (u)Rowbotham\.Rowbotham, L. J., P. M. & A. 213 ; 2 Sw. 27 L. J., P. & M. 61. & Tr. 402. Digitized by Microsoft® CUSTODY OP CHILDREN. 127 such children under the protection of the Court of After final L decree. 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" (a). Under this section and the 35th section of the 20 & interveners. 21 Vict, the Court will allow persons, who are not parties to a suit, to intervene and plead upon the ques- tion of the custody, maintenance and education of the children of parents, whose marriage is the subject of the suit (b). After a decree of judicial separation has been pro- Access. nounced, the Court will not order that the wife have access to the children of the marriage unless applica- tion be made by petition (c). The Judge Ordinary, having granted a decree dis- solving the marriage between the parties on the peti- tion of the wife, further ordered that on certain con- ditions, and after due notice, she should have access to her children ; the respondent for a time removed him- self and one child, beyond the jurisdiction of the Court, and on his return denied to the petitioner access to the child on the terms laid down by the Court ; on the suggestion that he was again about to leave this country, and in consideration of the approaching va- cation, the Court ordered that the child should be delivered up to its mother forthwith, and that she should have the custody of it until the fifth day of the following term {d ). The Court has no jurisdiction in a petition for the jurisdiction, custody of children until the petition is filed and both (a) 22 & 23 Vict. c. 61, s. 4. L. J., P. M. & A. 208. (b) Chetwynd v. Chetwynd, (d) Portugal V.Portugal, 35 34 L. J., P- M. &. A. 130. L. J., P. M. & A. 103. (c) Anthony v. Anthony, 30 Digitized by Microsoft® 128 CUSTODY OF CHILDREN. Insanity. Where parent ha9 no control, Court has none. Jurisdiction, parties before the Court. The Rules and Orders do not apply to such a petition (e). Nor has the Court power to make an order as to the custody of, or access to, the children where a petition for dissolution of marriage is dismissed (f ). Practice when petitioner is alleged to be of unsound mini(g). When husband continued to live in adultery at the time of a decree against him for judicial separation at the suit of the wife, wife ordered to have the custody of their son, a boy of thirteen, until he be fourteen, the husband having access (h). Where the children, with regard to whom an order for custody was applied for, — were a' girl aged twenty, and two boys of sixteen and eighteen years, it was held, that the 35th sect, of the Divorce Act, 1857, gave no jurisdiction, and that where the parent has no power of control, the Court has none (»"), nor has the Court power to order, under this section, a provision for the maintenance of such children (A). The authority of the Court is co-extensive with the rights of the father. Therefore, as it had been held in the Court of Queen's Bench that the father has a right to claim by legal process the custody of his children until the age of sixteen (Q. v. Howes, 30 L. J., M. C. 47) ; so, where the wife had obtained a judicial separation by reason of the desertion of her husband, the Court ordered that the children of the marriage under the age of sixteen years should remain in her custody until further orders (Z). It is the intention of the legislature to give the Courts a discretionary power exceeding that previously Discretion of the Court. («) Stacey v. Stacey, 29 L. J., P. M. & A. 63. (/) Seddon v. Seddon, 81 L. J., P. M. & A. 101. (g) Duggan v. Duggan, 29 L. J., P. M. & A. iH. (A) Hyde v. Hyde, 29 L. J., P. M. & A. 150. (>") Ryder v. Ryder, 30 L. J., P. M. & A. 44. (*) Webster v. Webster, 31 L. J., P. M. & A. 184. (I) Mallinson v. Malliason, 35 L. J., P. M. & A. 84. Digitized by Microsoft® CUSTODY OF CHILDREN. 129 exercised by Courts of law and equity ; and it should Discretion . . , . of the Court. in exercising it make such orders as are just and proper with reference to the circumstances affecting the suit, taking into consideration the interests of both children and parents (m). The Court will require to be satis- fied that the motive is natural love and affection for the children, and that the applicant has no indirect object in view ; it will also consider the convenience of all parties in the circumstances, and how the children, would probably be affected if the order were made (n). The application is not to enforce the common law rule, but to the discretion of the Court (o). And where, after a marriage had been dissolved on the ground of the husband's adultery and cruelty, appli- cations for the custody of the children were made by both the parents, and also by relatives of the husband, who had been allowed to intervene and be heard upon the question ; the Court, being of opinion that neither of the parents was fit to have the care of the children, ordered that the interveners should have the custody of them, the parents being allowed reasonable access ( p). Where a petition in a suit for judicial separation prays the Court, in its final decree, to make provision as to the custody of the children, under sect. 35 of the Divorce Act, the Court, at the hearing, will confine the inquiry to the conduct of the husband and wife, and will not mix it up with matters affecting the children only : it will deal with the question between husband and wife as a separate question in the first instance, and afterwards, if necessary (q), enter on the other inquiry. On pronouncing a decree of dissolu- When exercised. tion of marriage, the Court will make an order, that a (m) Marsh v. Marsh, 1 Sw. 35 L. J., P. M. & A. 21 ; 1 & Tr. 316. L. R. 39. in) Codrington V. Codrington (q) Suggate v. Suggate, 28 and Anderson, 3 Sw. & Tr. 496. L. J., P. & M. 47 ; but see (o) Spratt v. Spratt, 1 Sw. & Curtis v. Curtis, 27 L. J., P. & Tr. 215. M. 74. (p) Chetwynd v. Chetwynd, ' G 5 Digitized by Microsoft® 130 CUSTODY OF CHILDREN. Both parties must be be- fore the Court. Wife suc- cessful. child in the custody of the respondent be given up to the petitioner, even when the child is of an age that entitles the petitioner to the custody by common law (r). The Court is not in a position to deal with a petition for custody of children brought under 22 & 23 Vict. c. 61, s. 4, until both parties are before the Court (*). The order may be interim, pendente lite (see 20 & 21 Vict. c. 85, s. 35). On an application for an interim order, the Court will not disturb the custody of children, if they are under the control of persons reasonably impartial between the parties ; and children of tender age will generally be placed {t) in the mother's custody ; the expense of maintenance will be considered ; and, generally, access at proper times ordered («). Time granted on terms to a wife to reply to the affidavit on which application for an interim order was founded (x). Where the wife succeeds in her suit, she is generally entitled to the custody of the children (y) to the age of fourteen, though no misconduct on the part of the husband towards the children is shown, regard, how- ever, being had to the means of education and mainte- nance. Where a mother had obtained a decree for judicial separation by reason of the father's cruelty, the Court refused to give her the custody of one of the children, who was an idiot and of the age of twelve years, on the ground that the Court would only deprive the father of the custody of his child in favour of the (r) Boyd v. Boyd, 29 L. J., P. M. & A. 79, and 1 Sw. & Tr. 563. (*) Stacey v. Stacey, 29 L. J., P. M. & A. 63. (0 Curtis v.Curtis, 27 L. J., P. & M. 16. "facts in distinct paragraphs, after the model of " Form 1, endorse it with the title of the suit, and " with your name and address, as the proctor or " attorney of the petitioner, on whose behalf the " same is filed, and who must also sign it." It is remarkable that the Form originally given among the authorized forms under the 20 & 21 Vict. c. 85, was, when that act was passed, erroneous as to the address which headed it ; as that being the form for a petition for dissolution, the Judge Ordinary, to whom it was addressed, had no power to hear such causes ; and the correct form in which to have addressed such a petition would have been " To Her Majesty's Court for Divorce and Matrimonial Causes" (u) ; but since the Judge Ordinary may now dispose of such causes sitting alone, as well as of all other business in the Court, such a form would be correct in every kind of petition (x). The petition, when presented by a claim for husband for dissolution or judicial separation, may contain, in addition to its main object, a claim for damages from any person, on the ground of his having («) Ex parte Sharps, 10L. T., P. & M. 81. N. S. 458. f>) 23 & 24 Vict. c. 144, (0 Rule 1, 1866. s. 1. (u) Evans v. Evans, 27 L. J., Digitized by Microsoft® 160 PRACTICE AND PLEADINGS. Petition. Claim for damages. Facts relied on to be set out. committed adultery with the wife of the petitioner {y). It would seem to be intended by this enactment that the ground of the main petition should be adultery, though the words of the section do not exclude other cases; for instance, a petition for judicial separation on the ground of desertion or cruelty, joined with a claim for damages, against " any person," on the ground of adultery. Such cases may not be likely practically to occur. A copy of the petition, certified under the seal of the Court, together with the citation, must be delivered to each of the respondents (z). A precedent is given for a petition, containing a claim for damages, (see Precedent, Appendix IV). As, however, the claim for damages may be made in a separate petition, the principles and procedure on which this claim is heard and determined will be considered in a separate manner. (See Damages against Adulterer, p. 119.) In every petition care should be taken to set out with accuracy the facts intended to be relied upon, - as the Court has decided that it will not go into evi- dence of facts not alleged in the petition (a), as grounds for granting its prayer. But evidence of acts of adul- tery, distinct from or subsequent to those set out in the petition, is sometimes given, in order to determine the nature of the connection between the alleged adul- terer and the wife, from an analogy to the proceedings in the abolished action of crim. con. (b). But where a wife was charged in a petition with adultery, counsel for the husband, in order to repel this plea, tendered evidence of acts of adultery not laid in the petition, and which were committed prior to but were unknown to the husband at the time of the alleged condonation; the Judge Ordinary ruled hasitanter, that, as the pe- (i/) 20 & 21 Vict. c. 85, a. 33. (i) Rule 12, 1866. (a) Wetherill v. Wetherill, 11 May, 1858. (6) Boddy v. Boddy and Grover, 30 L. J., P. M. & A. 23 ; Duke of Norfolk's case, 12 How. St. Tr. 927. Digitized by Microsoft® PRACTICE AND PLEADINGS. 161 tition contained no averment of the acts of adultery, Petition. the evidence was inadmissible (c). And, in an unde- fended suit, the Court refused to admit evidence that the respondent had infected the petitioner with the venereal disease, there being no allegation in the peti- tion that cruelty of that nature had been committed, although there was a general charge of cruelty (d). Facts, however, which amount only to evidence in Evidence support of the petition, should not be alleged, as the pleaded. petitioner is only to show his cause of action, not the evidence by which he intends to support it (e). " Though some statement of circumstances may be Degree of ° ^ particularity " necessary, evidence should not be pleaded" (f). But required. a petition for divorce, on the ground of adultery, must allege adultery in distinct terms (g). In charging cruelty in a petition the acts should be specified as, if proved, would constitute cruelty, though their precise dates need not be alleged (A) ;. still the acts must be specified, though the particulars need not be given (i). But any distinct species of cruelty intended to be proved, must be stated in the petition, and evidence in support of it will not be admissible under a general charge of " otherwise treating with great cruelty " (A). Where a petition for dissolution of marriage alleged Order for particulars a specific act of adultery on the 25th of August, and when then went on to allege other acts of adultery between that day and the 31st of October next following, the Judge Ordinary declined to order particulars of the dates of these latter acts of adultery (Z). But where a petition for dissolution of marriage was preferred by (c) Keats v. Keats and Mm- Spilsbury, 32 L. J., P. M. & A. tezuma, 1 Sw. & Tr. 334. 126. (rf ) Squires v. Squires, 33 (h) Suggate v. Suggate, 28 L. J., P. M. & A. 172. L. J., P. & M. 7. (e) Allen v. Allen, 9 Nov. (i) Goldney v. Goldney, 32 1858. L. J., P. M. & A. 13. (/) Pyne v. Pyne, 1 Sw. & (A) Squires v. Squires, 3 Sw. Tr. 80. & Tr. 541. {g) Ambler v. Ambler, 32 L. (I) Boddy v. Boddy and J., P. M. & A. 6 i Spilsbury v. Grover, 28 L. J., P. & M. 16. Digitized by Microsoft® 162 PRACTICE AJJD PLEADINGS. Petition. reason of the husband's adultery and desertion, it was Particulars, < jj recte fl to De am ended by a distinct averment of the facts of the desertion (m). Minute specification in pleading acts of adultery depends on the opportunities afforded for the commis- sion of the offence ; if they have been frequent {e. g. during a period of four months), it is not necessary to allege particular dates and times: secus, if such opportunities have been of rare occurrence (n). And where, in. a suit for dissolution by a husband, the petitioner, in pursuance of an order made on the application of the respondent, delivered particulars, in which he alleged generally adultery with A. at Malta, " between 1859 and 1862, and during a journey in " Switzerland, Savoy, Sardinia and Italy;" upon ap- plication for further and better particulars, it appear- ing that the information of the petitioner was solely derived from a diary and certain correspondence of the respondent, the Court ordered that unless ten days before the trial particulars, setting out the dates and occasions of the alleged adultery, should be given to the respondent, the petitioner should be precluded at the trial from giving any save documentary evidence of the adultery charged, (o). And where a petition for dissolution of marriage by a husband alleged, " that on divers occasions since the "1st day of January, a.d. 1862, the respondent had " accompanied the co-respondent to divers places in " Bristol and its neighbourhood unknown to the peti- " tioner, and had committed adultery with the co- " respondent ;" the Court ordered that particulars of this charge should be given, or that the petitioner should file an affidavit that he was unable to do so (p). (m) Pyne v. Pyne, 1 Sw. & (o) Codringlon v. Codringtm, Tr. 80. 33 h. J., P. M. & A. 53. (b) Graves v. Graves, 3 Curt ( p) Hlggs v. Higgs and Hop- 235. kins, 32 L. J., P. M. & A. 64. Digitized by Microsoft® PRACTICE AND PLEADINGS, 163 Where the petition stated, " 3rd. That on divers occa- Petition. " sions since the month of October, 1857, the respon- Particulars - " dent committed adultery by sexual intercourse with " some men other than the pe'titioner. 4th. That at " various times between the month of October, 1857, " and the month of May, 1862, the respondent com- " mitted adultery with the co-respondent at the fol- " lowing places, Macao, in the empire of China ; Bath, " in the county of Somerset, and at other specified " places j" particulars were granted (q). A petition for divorce by a husband in the 3rd paragraph alleged that the respondent, since the 8th October, a.d. 1846, had on divers occasions committed adultery ; and in the 4th, that the respondent had, since April, 1864, up to the date of the petition, been habitually visited at her residence at &c, by A., and had, on divers of such occasions, and particularly on the night of the 31st of August, 1864, committed adultery with A. ; It was held, first, that it was not sufficient to give par- ticulars of the dates when, places where, and persons with whom the adultery alleged in the 3rd paragraph was committed ; but the petition must be amended by setting out such particulars ; secondly, that the re- spondent was not entitled to particulars of the adul- tery charged in the 4th paragraph (r). Where the Queen's Proctor intervenes and charges the suppres- sion of material facts, without specifying such facts, the petitioner is entitled to particulars (s). Where, in a suit for dissolution by a husband, the respondent alleged in the 3rd paragraph of her answer, " That at " divers times in the year 1862, and particularly in " and about the month of July in that year, the peti- " tioner at a house No. 8, Chapter Road, Walworth, "in the county of Surrey, committed adultery with (q) King v. King and Dent, gard, 33 L. J., P. M. & A. 207. 32 L. J., P. M. &A. 64(notis). (s) Barnes v. Barnes, 87 L. (r) Porter v. Porter and Jag- J., P. & M. 4. Digitized by Microsoft® 164 PRACTICE AND PLEADINGS. Petition. « Mrs. Swift." And in the 5th paragraph, « That at "divers times during the years 1861 and 1862, the " petitioner has at divers brothels in and about Lon- " don Road, and Walworth and Newington, all in the " county of Surrey, committed adultery with divers " prostitutes, whose names are to the respondent un- " known :" The Judge Ordinary thought the 3rd pa- ragraph a case for particulars, and directed the 5th paragraph to be amended, by stating with more parti- cularity where the brothels referred to where, and the occasions on which adultery was committed (t). Where the petition stated, "3rd. That on divers " occasions since the 12th of May, 1850," (the day of the marriage,) " the respondent has committed adul- " tery. 4th. That in the month of May, 1862, the " respondent, having formed an adulterous connection " with the co-respondent, left my house, and has ever " since habitually committed adultery with the co- " respondent, at some place in Wales, at present un- " known to me, during the months of July and Au- " gust, also at a house situate in Victoria Place, Stoke, " in the borough of Devonport, in the county of Devon, " during the months of October and November, 1862, " and at divers other places at present unknown to " me :" The Judge Ordinary ordered particulars to be given as to the 3rd paragraph, but not as to the Vagueness 4th (u). But the too great generality of a charge is for aemurrer. n0 ground for demurrer, but only for an application to have the petition amended, or for particulars (x). When a petition contains a general charge of adultery, of which particulars are ordered and delivered, the peti- tioner ought, if he intends to give evidence of acts of adultery not included in the particulars, to give notice (0 Wells V. Wells and Ha- merton, 32 L. J., P. M. & A. 65 (notis). (u) Lidstone v. Lidstone and Edmonds, 32 L. J., P. M. & A. 66 (notis). (x) Leete v. Leete, 31 L. J., P. M. & A. 121. Digitized by Microsoft® PKACTICE AND PLEADINGS. 165 of them to the other side a reasonable time before the Petition, hearing ; if he does not give such notice, the trial will be adjourned (y). The right in which the petitioner Petitioner's sues should appear on the face of the petition : For should ap- in a suit for nullity instituted by the father of one of faceofpeti- the parties to the pretended marriage, it is necessary that it should appear upon the face of the petition, that he is proceeding in his own right, and not as guar- dian (z). The petition should be divided for convenience into Paragraphs different paragraphs, but each paragraph (after the formal ones alleging the marriage, cohabition, &c.) need not contain a complete right ; for instance, in a suit for judicial separation, on the ground of cruelty, each need not in itself allege an independent act of cruelty sufficient in itself to warrant a decree, as cruelty may consist in the aggregate of the acts al- leged in the petition (a). Each petition should con- clude with a distinct averment of the grounds on which it depends (b). Petition — Prayer. — The last part of the petition is Prayer of petition. the prayer, in which the relief sought is to be set out. This prayer may be for two or more distinct objects ; or in the alternative, as, for instance, for dissolution of marriage, or for a judicial separation. If a peti- tion conclude only with a prayer for dissolution of marriage, or such other relief as to the Court may seem meet, the Court may thereupon grant a judicial separation (c). Moreover, the Court will on the ap- plication of a petitioner grant a decree of judicial separation instead of a decree of dissolution, although the petition prays for dissolution, and evidence has (y) Bancroft v. Bancroft, 34 P. M. & A. 121; Green v. L. J., P. M. & A. 81. Green, 33 L. J., P. M. & A. 64. (a) Wells v. Cottam, 12 W. (6) Ambler v. Anibkr, 32 L. R. 672 ; 33 L. J., P. M. & A. J., P. M. & A. 6. 41. (c) Smith v. Smith, 28 L. J., (o) Leete v. Leete, 31 L. J, P. & M. 27. Digitized by Microsoft® 166 PBACTICE AND PLEADINGS. Affidavit in support. Co-respond- ent. been given upon which a decree for dissolution could be founded (rf). " Every petition shall be accompanied by an affi- " davit, made by the petitioner, verifying the facts, " of which he or she has personal cognizance, and de- " posing as to belief in the truth of the other facts " alleged in the petition, and such affidavit shall be " filed with the petition" (e). \Draw an affidavit according to the above Rule, as to the facts within the petitioner's knowledge, and as to the other facts, stating "that he is informed and verily believes" and containing {in suits for nullity, judicial sepa- ration, dissolution or jactitation) an averment that no collusion or connivance exists between the peti- tioner and the other party to the marriage, or alleged marriage, according to Precedent (/").] This affidavit should not be headed in the cause, but "in the matter of the petition of A" (g). This affidavit formerly in practice was not confined to matters literally within the petitioner's knowledge, but extended to his information and belief of the other points of the petition (A). This is now dis- tinctly provided by the new rule. The affidavit will not be taken as evidence of any fact whatever alleged in it at the hearing ; it is strictly preliminary, and only to verify the petitioner's statement (i), and can be used for no other purpose. "Upon any such petition (i. e., for dissolution of " marriage), presented by a husband, the petitioner " shall make the alleged adulterer a co-respondent to " the said petition, unless on special grounds, to be " allowed by the Court, he shall be excused from so " doing (A)." " Upon a husband filing a petition for (d) Dent v. Dent, 34 L. J., P.M. & A. 118. (e) Rule 2, 1866. (/) Rule 3, 1866. (g) Steed v. Steed, 36 L. J„ P. & M. 50. (h) Tourle v. Tourle, 1 Sw. & Tr. 165. (t) Deane v. Deane, 1 Sw. & Tr. 90. (A) 20 & 21 Vict c 85, s. 28. Digitized by Microsoft® PRACTICE AND PLEADINGS. 167 " dissolution of marriage on the ground of adultery, co-respon- " the alleged adulterers shall be made co-respondents " in the cause, unless the Judge Ordinary shall other- " wise direct" (Z). The application to be excused whenpeti- from making a co-respondent should be made by the cused from petitioner to the Court at once, as it is doubtful respondent^ whether the Court has power to make such an order after the citation has been served on the respon- dent (m). Even though the alleged adulterer be dead, leave must be obtained (n). The application for such direction is to be made to the Judge Ordinary on motion founded on affidavit (o). What are " special grounds." — Where the affidavit « special in support of the motion stated that the petitioner had groun s ' " r Adulterer been informed by H. that the respondent and a man unknown. had taken furnished apartments and slept together in her house, and that she had not since seen the man, and did not know his name, though she had made efforts to discover it (p) : held, sufficient ground. Though it is not sufficient simply to state that the petitioner was unable to learn the name of the alleged adulterer (q). Where the affidavit stated facts, show- Birth of a ing, by the birth of a bastard child, that the respon- bastald - dent had committed adultery, and that the petitioner had no means of discovering, and was totally ignorant of who or what the parly was (r) : held sufficient. Where the alleged adulterer was at the Cape of p rCTious Good Hope, and had allowed judgment to go by de- ™^ages.° f fault in an action of crim. con., at the suit of the husband (s) : held sufficient. But the mere recovery of damages in an action of (I) Rule 4, 1866. (?) Evans v. Evans, 28 L. J., (m) Tollemaehe v. Tollemache, P. & M. 20. 28 L. J., P. & M. 2. (r) Hunter v. Hunter and (n) Ibid. Vernon, 28 L. J., P. & M. 3. (o) Rule 5, 1866. («) Tomkin v. Tomkin, 27 L. (p) Evans v. Evans, 28 L. J., J., P. & M. 54. P. & M. 20. Digitized by Microsoft® 168 PRACTICE AND PLEADINGS. Co-respon- crim. con. does not of itself constitute a "special dent. ground," on which the petitioner will be excused (t). It is questionable whether there being evidence of adultery as against the wife, but none as against the alleged adulterer, and the fact that he is resident abroad, would be sufficient grounds for excusing the petitioner from making him a co-respondent (w). wife a pros- Where the wife was living as a prostitute in a titute. brothel, the Court excused the husband from making a co-respondent to his petition (x) ; but not where he knows of any person with whom she has committed spond'ent adultery (y). And semble, where a husband had De b dTs- Uent7 been allowed to proceed without making a co-re- spondent, and afterwards and before the trial acquired evidence as to the person with whom his wife com- mitted adultery, and who was previously unknown, he ought to have brought the matter before the Court. He need not have done so when the sole evidence is the wife's confession (z). This is now made more clear by the 6th Rule, 1866. Nor will the Court upon the affidavit of the peti- tioner only, allow him to proceed without making a co-respondent (o), though it did so in one case, {Doug- las v. Douglas,) 27th February, 1864. Dismissing a As to dismissing respondents or co-respondents party from the suit. from the suit " after the close of the evidence on the "part of the petitioner," see 21 & 22 Vict. c. 108, s. 11. This section of the act was passed in con- sequence of the case of Robinson v. Robinson and Lane, 1 Sw. & Tr. 362. From which it appeared (t) Ex parte Anon., 27 L. J., (y) Quiche v. Quiche, 31 L. J., P. & M. 4; and In re Armi- P. M. & A. 28. tage's Divorce, 1 Sw. & Tr. 70. (z) Musprat v. Musprat, 31 («) Carryer v. Carryer and L. J., P. M. & A. 28 ; Jinking Watson, 34. L. J., P. M. & A. v. Jinking, 36 L. J., P. & M. 47. 48. (i) Hooke v. Hooke, 27 L. J., (a) Leader v. Leader, 32 L. P. & M. 61. J., P. M, & A. 136. Digitized by Microsoft® PRACTICE AND PLEADINGS. 169 that, though on the application of the respondent the Dismissing a co-respondent could not then be dismissed from the the suit. suit, on the application of the petitioner he might have been dismissed at any period of the- suit ; and where the co-respondent pleaded to the jurisdiction under protest, the Court, on the application of the petitioner, dismissed him from the suit on payment of his costs (6). But the Court has no power to dismiss a co-respondent from a suit on the ground of delay in prosecuting the suit: the application in such a case should be for a rule nisi for the dismissal of the peti- tion (c). Formerly it was held that there might be several Every adul- terer a co- co-respondents, but there need not be more than respondent. one (d). But this seems now to be overruled, and in a suit for dissolution of marriage for the wife's adul- tery, the petitioner must make every man against whom adultery is alleged in the petition a co-re- spondent, unless on special grounds he is excused by the Court from so doing (e). Moreover the words of the 4th rule, 1866, declare that " the alleged adulterers are to be made co-respondents," so that all doubt seems now at rest on this question. It mav be as well to mention the word " respondent" Meaning of J * " respond- in the new rules includes a co-respondent (/). ent -" Sometimes after a petition has been filed the peti- Adding a co-respond- tioner applies for leave to add another or more co- ent. respondents. This application will not be granted if made with a view of closing the mouth of such other person or persons (g) Every petitioner who files a petition and afli- (b) Gaynor V. Gaynor, 31 (e) Carryer v. Carryer and L. J., P. M. & A. 116 ; and see Watson, 34 L. J., P. M. & A. note there. 47. (c) Hancock v. Hancock, 36 (/) Rule 7, 1866. L. J., P. & M. 86. (g) Codrington v. Codrington (d ) Hunter v. Hunter, 28 L. and Anderson, 33 L. J., P. M. J., P. & M. 3. & A. 62. Digitized by Microsoft® 170 PRACTICE AND PLEADINGS. Citation. davit shall forthwith extract a citation under the seal of the courts for service on each respondent in the cause, according to Form, No. 2 (A). [Pro- cure a citation (a form of which on parchment may be had at most law stationers, who can also supply the necessary os. stamp). Fill up the blanks according to your case, and write your name and address at the bottom left-hand corner, and take it together with the petition, the affidavit, a prtecipe (see Form 3), drawn on a sheet of foolscap, folded lengthwise, having your address within three miles of the General Post Office, to the Registry, written in it. The proper officer will file the petition and affidavit. Leave with him the prtecipe and the cita- tion ; he will affix his initials to the citation, and will forward it to the Registrar for his signature; the citation will then be sent to the seal seat in the Probate Office, whence you must obtain it, with the seal of the Court attached^] Precipe. " The praecipe" appears to be similar to a praecipe in the Common Law Courts ; a mistake in its form would not, it seems, affect the validity of the writ itself, and certainly not the subsequent proceedings in the suit («). But it should be identical with the citation, otherwise there would be a difficulty in issu- ing a second citation. Address. " The address" is for the purpose of facilitating business, as it will be sufficient for the opposite party to leave there all pleadings and other instruments which are not expressly directed by the rules to be personally served (k). A similar provision for the other side is made by Eule 21, 1866. citation. " The citation'' corresponds in some respects with the writ of summons at common law ; it is a document (h) Rule 8, 1866. 6 31. & W. 636. (0 Wells v. Lord Suffield, 5 (k) Rule 39, 1866. D. S: L. 177; Kirk v. Dolby, Digitized by Microsoft® PRACTICE AND PLEADINGS. 171 directed to the respondent or co-respondent, and com- Citation. mands the party to appear within a certain time men- tioned, and a -warning that in case of default the Judge or Judges (as the case may be) will proceed to hear the charge mentioned therein, " his absence not- withstanding." The citation must correspond with the petition : for where a citation issued as in a suit of nullity of mar- riage by reason of a former marriage, it was held that it could not found a sentence of separation by reason of an undue publication of banns, the woman being therein described as spinster, the first husband having died subsequent to the publication of banns, but prior to the marriage {I). A citation " to appear" and answer in a cause of nullity of marriage was held a sufficient description of the nature of the suit, and a protest to appearing thereto was overruled (m). Where the address of the respondent is unknown, he Misnomer. may be described in the citation as late of the last known place of his residence (w). The name of the respondent must be correctly inserted, for if the name of a respondent be misspelt in a citation, and there is no appearance, the Court will not order that the ser- vice of such citation be deemed sufficient, but a fresh one must be extracted (o). But if the party cited ap- curea by pear, it seems the misnomer would be thereby cured(p). Where *he petitioner had obtained a decree for dis- solution of marriage, and an attachment had been issued against the co-respondent for non-payment of the taxed costs, the Court refused to set it aside on the ground that the co-respondent had stood by throughout the proceedings as if he were the right (0 Wright v. Elwood, 2 Hag. L. J., P. M. & A. 1 34. 598. " (o) Cotton v. Cotton, 32 L. J., (m) Woolley v. Morgan, 3 P. M. & A. 133. Curt 338. (p) Kisch v. Kisch, 4 New (n) Forster v. Forster, 32 R. 28. 12 Digitized by Microsoft® 172 PRACTICE AND PLEADINGS. Citation. Time speci- fied in. Service of. person, although all the proceedings in the suit had been served on him with a mistake in his name (§>). The time generally specified is eight days, but in special cases this may be altered, as the term of the return is in the discretion of the Court (r). Where the respondent was in America, the Judge Or- dinary recommended the appearance to be commanded in six weeks (s). [Serve the citation on the respondent in the same way as a writ of summons, by showing the original, if required, and by giving him or her a copy ; deliver to him or her at the same time a certified copy of the petition under seal of the Court ; if there is a co- respondent, serve him or her with a similar citation, and deliver to him or her also, at the same time, another certified copy of the petition (£).] The Court enforces personal service as far as pos- sible (u), and will not allow a suit to proceed upon the mere undertaking of an attorney to accept service of the citation for the respondent ; personal service is necessary unless the Court has dispensed with such service (x). But in cases where it cannot be effected, service other application may be made to the Judge Ordinary, upon sonai. motion, or in his absence to the Registrars, to substitute some other mode of service (y). There appears to be, under the new rules, no power for dispensing with service altogether. The application to substitute a mode ©f service other than personal must be founded on an affidavit, setting out the grounds why personal service cannot be effected ; and this affidavit (like most others which are to ground applications to the Court) must be left with the clerk of the papers before two o'clock, p.m., Application for. (q) Churchill v. Churchill and Abbott, W. N.Jan. 25, ]8fJS. (r) Fleetwood v. Steele, Milw. Irish Ecc. Rep. 362. \s) Robotham v.Robolham, 27 L. J., P. & M. 33. (0 Rules 11 and 12, 1866. (u) Rule 10, 1866. (*) Milne v. Milne, 34 L. J., P. M. & A. 143. (y) Rule 13. Digitized by Microsoft® PRACTICE AND PLEADINGS. 173 On the fourth day before the motion is to be heard, citation, exclusive of Sundays. These applications have been some at- invariably rejected, where no attempt has been made be made to j • i • serve per- to discover the parties (z). sonaiiy. The following cases may be of use, to show in what instances the Court is disposed to assist the petitioner. Where a wife filed a petition for dissolution of mar- Respondent abroad. riage, but was unable to effect personal service of the citation, &c, in consequence of the respondent having gone abroad, but whither she knew not : A., knowing where the respondent was, though refusing to give his address, forwarded to him, by post, an office copy and plain copy of the petition, and two copies of the citation : The respondent returned, by post, to A. the plain copy of the petition, and one of the copies of the citation, on which were indorsed memoranda signed by him, acknowledging the receipt of the office copy of the petition, and also a copy of the citation : The respondent not having entered an appearance, the Judge Ordinary allowed the petitioner to proceed without further service (a). Where an application was made on behalf of a wife, who had presented a petition for dissolution of marriage, that a substi- tuted service of the citation on the father of her hus- band should be allowed, on the ground that she did not know her husband's address, but that his father was in communication with him ; the application was rejected by the Judge Ordinary, as it appeared pro- bable that the husband was in New York, and the impossibility of serving him personally was not made out : He recommended the petitioner to send out to some person in New York, say the British consul, the citation and a copy of the petition, with instructions to send back the citation, when served, together with an affidavit of service : If the application were not (z) 28'L. J.,P. & M. 5, note. (a) Chandler v. Chandler, 28L. J., P. & M. 6. Digitized by Microsoft® 174 EKACTICE AND PLEADINGS. citation. successful, the petitioner might come to the Court service of. again (b). An application was made on -behalf of a wife, who had presented a petition for dissolution of marriage, to dispense with personal service of the citation, and to allow substituted service on the brother of the husband : The affidavits showed that the husband was living abroad under an assumed name, and that the wife could not ascertain where he was, but that her husband's brother was in communication with him, and had undertaken to forward the citation to him : The Judge Ordinary rejected the appli- cation, on the ground that personal service might be effected through the husband's brother (e). To en- title the petitioner in a suit for dissolution of marriage to proceed without personal service of the citation, it is not sufficient to show that the respondent is abroad, and that the petitioner does not know where he is ; some attempt should be made to discover and serve him (d). Where, in a suit by the wife for judicial separation, an application was made for an order that service of the citation and copy of the petition upon the father of the husband should be deemed good service, upon affidavits which stated that the wife did not know where the husband was, and that his father, though it was believed he knew his address, would not disclose it, and that the wife had last heard from her husband in 1854, when he wrote to her, the Judge Ordinary refused to make the order, without an affi- davit that inquiries had been made for the husband at the place from which the letter was addressed, but subsequently granted it on an affidavit that such in- quiries had been made there, and that he had gone to another place which he had also left, and that the per- son in whose employ he had been at the latter place (b) Rowbothamv.Rowbotham, L. J., P. & M. 35. 27 L. J., P. & M. 33. (d ) Sudlow v. Sudlow, 28 L. (c) Chandler v. Chandler, 27 J., P. & M. i. Digitized by Microsoft® PRACTICE AND PLEADINGS. 175 did not know where he had gone (e). On the other citation. hand, the Judge Ordinary allowed a husband to pro- f "^"{.f 1 ceed with a suit for dissolution of marriage, without serving the citation on the alleged adulterer, who was at the Cape of Good Hope, he having allowed judgment to go by default in an action of crim. con.(y). In a proceeding by a wife against a husband for judi- cial separation by reason of his adultery, he had left his home, and it was found impossible to serve him with the petition or citation, an affidavit of that fact having been brought in, service of both was dispensed with(gr). Where, in a suit for dissolution of mar- riage on the ground of the wife's adultery, the affi- davits in support of a motion to dispense with per- sonal service of citations and copies of the petition stated that the wife had deserted her husband at Liverpool in August, 1857; that there was reason to believe that she afterwards lived in this country with Q., the co-respondent, as his wife ; that in October, 1857, two persons, passing under the name of Mr. and Mrs. Q., sailed from London for Australia, and after- wards landed in Melbourne ; that there was reason to believe that the said Mr. and Mrs. Q. were the re- spondent and the co-respondent ; that inquiries had been made in Melbourne of the agent of the ship in which those persons went to Australia, and of other shipping agents there, also of the inspector of police at Sydney, but that no trace of them or of their move- ments could be discovered ; the Judge Ordinary dis- pensed altogether with service on the respondent and eo-respondent : Semble, that if there had been any certain information as to their movements in Aus- tralia, further inquiries would probably have led to (e) Lacey v. Lacey, 28 L. J., J., P. & M. 54. P. & M. 24. (g) Deane v. Deane, 27 Feb. (/) Tomkin v. Tomkin, 27 h. 1858, 4 Jur., N. S. 148. Digitized by Microsoft® 176 PRACTICE AND PLEADINGS. Citation. Substituted service of. On particu- lar persons. their discovery, and would therefore have been neces- sary (h). Under the old law if the party cited by ways and means (which was equivalent to the present practice of substituting a mode of service for personal service) did not appear, he must be pronounced in contempt before the proceedings could go on. In such cases the Court refused to pronounce a party, not appearing, in con- tempt unless the residence of the party could be fixed within the jurisdiction of the Court at or before the issuing of the citation (i). If the same rule is now to hold, it would seem that when a citation is allowed to be served in any other way than by personal service, before the judge can allow the petitioner to proceed, the petitioner should show that the party cited had a residence, before or at the time of issuing the citation, within the jurisdiction of the Court. No such objection however appears to have ever been taken among the cases reported since the present Court has been constituted. However, where an attempt was made, at the suit of a wife for a divorce, to serve the husband with a cita- tion taken out in October, 1848, at his last known place of residence which was within the jurisdiction of the Court, it subsequently appeared he left that residence in March, 1847 ; a decree by ways and means was, on the return of the citation, executed at that house, and at the parish church : on the 5th Feb- ruary, 1849, he was personally served in the West Indies ; the Court on motion pronounced the husband in contempt for the purpose of carrying on the pro- ceedings, and placing the evidence on record, and eventually pronounced a divorce (k). Service of a citation on a minor is effected by (h) Cook v. Cook and Quail e, 28 L. J., P. & M. 5. (i) Garden v. Carden, 1 Curt. 558. (k) Dasent v. Dasent, 1 Ro- bert. 800. Digitized by Microsoft® PRACTICE AND PLEADINGS. 177 serving it on him in the presence of his natural or citation, legal guardian, or of some person upon whom the care ^ e "dr. e ° n " and custody of the minor has for the time being de- volved (I). But in the Probate Court, where the minor was resident in service in Derbyshire, and her mother, her natural guardian, resided in Middlesex, the Court granted administration to a creditor with- out requiring the citation to be served on the minor in the presence of her mother ; a copy of it sent by post having been duly received by the minor (m). Though generally in all cases of " process" served on a minor, the Court requires a certificate of its having been served in the presence of the natural or legal guardian of the minor ; or at least in that of some person or persons upon whom the actual care and custody of the minor for the time being has properly devolved. Where four out of five minor children of a deceased intestate and widower signed a proxy electing a guar- dian to take administration of their father's effects, the other child being restrained from joining in the proxy by the intervention of a friend, with whom she re- sided, and who refused to allow service of the decree on the minors by the apparitor of the Court, he showed the original decree under seal to the person under whose care the minor was living, and left a copy of it at her residence : held sufficient (n). And where a citation, issued by a creditor of a deceased, calling upon minors to accept or refuse letters of adminis- tration, was personally served upon them, but the person under whose care they were, though he had notice of the citation, declined to be present at the service ; the next of kin of the minors had also notice (l) Brown v. Wildman, 28 L. L. J., P. M. & A. 126. J., P.& M.54; Cooper v. Green, (ra) Sprigg v. Banks, 4 No. 2 Add. 454. of.Cas.102. (m) Lainson v. Naylor, 29 i5 Digitized by Microsoft® 178 PRACTICE AND PLEADINGS. Service on a married woman. citation. f the citation, and ineffectual attempts to serve him were made : held, that the service was sufficient (o). It is the rule in probate that a citation ought to be served upon a married woman in the presence of her husband ; see Hallet v. Cox and others, February 16th, 1859. But where a citation, calling on a married woman to accept or refuse. administration, had not been so served, but a renunciation had been duly executed by her and by her husband, the Court made a grant without requiring fresh service ( p). This, of course, does not apply in the Divorce Court to those cases where a married woman is cited as respondent in any suit against her by her de facto hus- band, or where her marriage is in question ; but it might apply to cases where a married woman is made a respondent and cited as such under the 28th section of 20 & 21 Vict. c. 85. Nor does the probate allow a citation to be served by a party to the suit ( q). on a lunatic. Where a person,, whom it is necessary to cite as interested in the estate of a deceased, is lunatic, and a committee of his estate has been appointed, service of the citation upon such committee is sufficient. It is not necessary that the lunatic should be personally Parent suing served in the presence of some medical man (r). In son and son's wife. a suit for nullity, instituted by the father of one of the parties to the pretended marriage, in his own right, he must cite both the parties to the pretended marriage (s). Personal service having been effected, or some other mode having been substituted and effected, the citation must be forthwith returned into and filed in the registry, Citation must be returned. (o) Lean v. Finer and ano- ther, 33 L. J., P. M. & A. 88. (p) Herbert v. Shiell,- 33 L. J., P. M. St. A. 142. (q) Glyde v. Davie, 33 L. J., P. M. Si A. 184. (r) In the goods of Surtees, 28 L. J., P. & M. 88. (i) Welts v. Cot tarn, 12 W. R. 672 j 33 L. J., P. M. & A. 41. Digitized by Microsoft® PRACTICE AND PLEADINGS. 179 in the same way that the petition and affidavit were ; citation. and a certificate thereof (see Form 4) must be indorsed eturn on the citation. The rules are silent as to what is to be done with a citation when another mode of service is substituted for personal service. But analogy, and the change from the old Rule 13 to the new Rule 14, would seem to show, and the practice is, to indorse the sub- stituted mode of service, when effected, on the citation, and then to return it. Generally, a citation cannot be filed in the Registry without an indorsement thereon of personal service ; but under the former rules the Court held that it could dispense with the rule (Rule 13, 1858), and direct the citation to be filed notwith- standing the absence of such indorsement (t). The Court will not hear the case, and the registry consider they have no seisin of it, until the citation is returned and filed («). Such a return is necessary in order to preserve evidence that the proper steps have been taken. Where the petitioner, in a suit for dissolution of marriage, sent out citations for service on the respondent and the co-respondent, who had gone to Australia, and efforts had been made to discover and serve them without success, and personal service was dispensed with, and the solicitor in Australia employed to effect service omitted to return the citations to this country, the Judge Ordinary refused to allow the petition to be set down for hearing until they should be returned (x). After the service of the citation an appearance must Appearance of respond- be entered by the respondent within the specified ent. time. In case the respondent fails to appear, an im- , portant distinction between the principles of other Courts and those of the Court for Divorce must be observed. In the former the interests of the parties Distinction between the (t) CogHU v. Coghilland Lau- & M. 37. riero, 1 L. R. 26. (*) Ibid, (u) Cook v. Cook, 28 L. J., P. Digitized by Microsoft® 180 PRACTICE AND PLEADINGS. Divorce Court and other Courts in principle. No judgment by default in the Divorce Court. Petitioner must always prove his case ; cannot be witness in support of his case : but may be examined by Court ad- versely. In case of no appear- ance by respondent. Affidavit. are antagonistic, and the parties themselves may be safely left to protect them ; but in the Divorce Court the object of the petitioner and the respondent is frequently the same, viz., the obtaining a divorce, or separation. Another principle therefore rises up, namely, the protection of society, 'which requires that, in cases of collusion, the parties may not be enabled to take advantage of their own wrong. Hence, in proceedings in the Court for Divorce, although no ap- pearance be entered by the respondent, the petitioner must prove his case first, as though the specific allega- tions in it were denied. This principle will be found to pervade the entire practice of the Court, and to cause very important deviations from the course pursued in other Courts. The petitioner, in dissolution, though he may never support his own case, may be examined adversely, and must be prepared to meet satisfactorily the inquiries of the Court, as to whether or no he has been accessory to or conniving at the adultery, or has condoned the same, although the respondent does not appear. Where no appearance has been entered within the time mentioned in the citation, the next step is to "file an affidavit that the parties have been duly cited, and that the deponent has searched the re- gistry, and has found that no appearance has been entered" (y). This affidavit must be filed as to the co-respondent (if any) as well as to the respondent, and in all cases, whether service be substituted or per- sonal (z), of course adapting the affidavit accordingly. A form (No. 5) is given under the new rules for the affidavit of service of a citation. In the forms given in Appendix 4 will be found a similar pre- cedent (No. 37), with a paragraph in addition, stating non-appearance. An affidavit which refers to (y) Rule 17, 1866. (z) Cooke v. Cooke and Lucy, 28 L. J., P. & M. 56. Digitized by Microsoft® PRACTICE AND PLEADINGS. 181 the certificate of service indorsed on the citation, and Respondent , t ,« . n0 * appear- states that such indorsement is true, is insufficient : tag. It should state in terms that the citation was served (a). The petitioner is at liberty to file this affidavit after the when affi- n i . davit to be expiration of whatever may be the time mentioned for filed, the appearance of the respondent in the citation (it is usually eight days). Tt would seem to be the inten- tion 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 affi- davit of personal service as to the party who does not appear, duly setting it out, must still be filed. The entry of appearance should be made within the Entry of . appearance. eight days (or whatever may be the time specified in the citation). Here, however, owing to the principle before alluded to, the petitioner cannot take advantage of the respondent's default by entering up judgment as in the common law courts. An appearance, how- Leave of the ever, to a citation, by or on behalf of the party cited, appear. may be entered at any time before a proceeding has been taken in default or by leave of the Judge Or- dinary, or of the registrars in his absence, to be applied for, by motion founded on affidavit (b). And an appear- ance might be entered at any time within twenty-one days from the service of the citation, which period it was the practice to allow (c). This was a decision before the recent rules, but it still seems to be a decision of importance. The words " or afterwards as hereinafter directed" in Rule 20, 1866, point to appearance under protest under Rule 22 ; it therefore seems that an appearance under protest may be entered at any time before the hearing. But it has since the New Rules been decided that, upon the expiration of (a) Rich v. Rich, 32 L. J., (c) Child v. Child, 33 L. J., P. M. & A. 77. P. M. & A. 156 ; and 3 Sw. (4) Rule 20, 1866. & Tr. 537. Digitized by Microsoft® 182 PRACTICE AND PLEADINGS. Respondent's the time fixed in the citation for the respondent's en- appearance. tering an appearance, if no appearance has been entered, the Court may direct the mode of trial ; in such a case, it is not necessary to wait until twenty- one days from the service have elapsed (d ). And the reason for the change is obvious ; for under the former rules (Eule 14), the respondent might have within twenty-one days filed his answer, and nothing was said about his having previously appeared : but under the New Rules (Eule 28) only those respondents "who have entered an appearance " can file answers. Appearance A respondent cannot appear by guardian, unless such guardian has been regularly elected (e). (See Form of Election, No. 14). Either of the respond- ents in the cause, after entering an appearance with- out filing an answer to the petition in the principal cause, may be heard in respect of any question as to Effect of costs ; and a respondent who is husband or wife of the entering appearance petitioner may also be heard in respect to any ques- without filing r J r J ^ answer. tion as to custody of children, but they are 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 (f). The further Eule 15, 1860 (now repealed) altered the practice as laid down in NorrisY. Norris and Gyles (^), and the present rule continues the amended practice. A co-respondent from whom damages are claimed, who has appeared but who has not filed an answer, cannot at the hearing cross-examine the petitioner's witnesses, nor address the jury upon the question of damages ; he is, however, entitled to be heard upon the question of costs ; and when the decree has been pro- nounced, he will, as to that question, be allowed to (d) Woody. Woodand Hutch- 41. ins, 36 L. J., P. & M. 48. (/) Rule 50, 1866. (e) Wells v. Cottam, 12 W. (g) 1 Sw. & Tr. 174. R. 672; 33 L. J., P. M. & A. Digitized by Microsoft® PRACTICE AND PLEADINGS. 183 recall and cross-examine the petitioner's witnesses, and also address the Court (h). Where, in a suit by the husband for dissolution of when leave to appear marriage, the wife did not appear, the co-respondent granted, filed an answer, and the issue raised was set down for trial, the Court subsequently allowed the wife to enter an appearance upon an affidavit by her denying the adultery, and stating that she had been prevented by poverty from appearing earlier, but directed that the costs should not be taxed against the husband («'). But where an issue raised by the respondent in a suit by the husband for dissolution of marriage, in which damages were claimed against the co-respondent, had been set down for trial by a jury, the Court refused to allow the co-respondent, on the day previous to that fixed for the trial, to enter an appearance, on the ground that the application was then too late (_/). \_Make out a memorandum for it on parchment Directions , j . 7 j ■ 7 7 .for entering and take it to the registry, a book is there kept in appearance. which you will enter an appearance. Pay the officer 2s. 6d. Add your address (within three miles of the General Post Office, as required by Rule 21, 1866). See Appendix, Form 6.] If the respondent or co- respondent enter an appearance which is informal, on account of some error or mistake in the name, &c, his proper course appears to be to apply to the Judge Ordinary . to amend that appearance, and not to enter a fresh one. There are no specific rules as to amendment of the citation or of the entry of appear- ance, but analogy would suggest that course (k). But by appearing absolutely, the respondent admits the jurisdiction of the Court, and he will not be allowed afterwards to amend the appearance by appear- ing under protest with a view to plead to the jurisdic- (h) Lune v. Lyne, 37 L. J., (j) Pounsford v. Pountford, P.&M.9. 30 L. J., P. M. & A. 188. (i) Bent v. Bent and Foot- (A) Bate v. Bolton, 4 Dowl. man, 30 L. J., P. M. & A. 160. 677. Digitized by Microsoft® 184 PRACTICE AND PLEADINGS, Answer. Leave of the judge to file answer. Further time a waiver of objection to the form of the petition. Affidavit ac- companying answer. tion (7). This is also distinctly provided by the 22nd rule, 1866. Answer. — \_Each respondent who has entered an appearance may, within twenty-one days from, the service of citation on him or her, file in the registry an answer to the petition. A form of answer is given in Appendix IV. No. 7 (m)J\ [ The rule in force previous to the new rule, viz., Rule 14, contained the words " otherwise the peti- tioner shall be at liberty to proceed to proof of the petition."] On this latter part of the 14th rule, it was decided that the petitioner must give notice to the other side of his intended application, although the latter had not filed any answer, but had appeared, before he could apply to the Court for leave to proceed to proof of his petition (n). An answer filed without leave of the Judge, after the time allowed by the rules for filing it has elapsed, may be treated by the petitioner as a nullity (o). The Judge, however, will grant this leave even after a cause has been adjourned part heard, on the re- spondent showing that she has been prevented from answering previously, by the contrivance of the pe- titioner (p). Where a respondent obtains further time to plead, he waives any objection to the suffi- ciency of the charge of adultery in the petition. He is still, however, entitled to particulars of the charge (q). [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 re- spondent, verifying such other or additional matter, (T) Garstin v. De Garston, 34 L.J., P. M. & A. 45. (m) Rule 28. (n) Ward v. Ward, 4 Jur., N. S. 366. (o) Avila v. Avila, 30 L. J., P. M. & A. 104. ( p) Alexander v. Alexander and Amos, 29 L. J., P. M. & A. 56. (q) Hepworth v. Heputorth, 30 L. J., P. M. & A. 215. Digitized by Microsoft® PRACTICE AND PLEADINGS. 185 so far as he or she has personal cognizance thereof, Affidavit ac- 7 _7 , , companying ana deposing as to his or her belief in the truth of the answer. rest of such other or additional matter, and such affidavit shall be filed with the answer (r).] Where a wife, in her answer to the charge of adultery, denies the adultery, and avers condonation and connivance on her husband's part, her affidavit verifying the answer must extend to the pleas of condonation and conni- vance, but need not be in absolute terms. She may swear that the adultery, if any, was condoned (s). No Pleading ■"•>*> * / several mat- order for pleading several matters is necessary in the ters - Divorce Court. " In cases involving a decree of nullity of marriage, " or of judicial separation, or of dissolution of mar- " riage, or a decree in a suit of jactitation of mar- " riage, 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 con- " nivance between the deponent and the petitioner" (t). Of course, in cases where collusion or connivance is the defence set up by the respondent, this rule cannot apply. But the best form in such a case for the affidavit seems to be, simply to add to the usual paragraph averring no collusion or connivance, the words "other- wise than is hereinbefore set forth." This would appear to be preferable to omitting the paragraph altogether. The last part of the answer is the prayer, which is The prayer in general for a rejection of the petition with costs ; answel - but in this, as in other matters, there is an important distinction between answers in suits for dissolution and in those in other suits. The Ecclesiastical Courts, whose powers and principles are transmitted to the present Court (20 & 21 Vict. c. 85, s. 6), possessed a power of giving relief to a respondent, if the answer contained a prayer for it ; and consequently in the (r) Rule 30, 1866. sltdw, 1 Sw. & Tr. 165. (s) Tourlev.TourleandRen- (t) Rule 31, 1866. Digitized by Microsoft® 186 PRACTICE AND PLEADINGS. Answer. present Court, in suits other than for dissolution, the Prayer of. answer can,, and frequently does, contain a prayer for relief; as, for instance, in a suit for restitution of conjugal rights, an answer may be given in, alleging adultery against the petitioner, and praying for a ju- dicial separation ; on such an answer the Court can, and frequently does, give the respondent the relief desired. Formerly it was otherwise in dissolution, where the only authority of the Court is that given by statute ; and as there was no power given to the Court, except to grant or reject the prayer of the petition, the. Court could never grant relief to a re- spondent. This frequently led to cross suits («) ; in such cases, whenever the same questions were raised in each suit, the Judge Ordinary would stay one of them, to prevent the "grievous hardship that two " suits, in which the same issues are raised, should be " going on at the husband's expense" (a>). 29 & 30 vict. But now by 29 & 30 Vict. c. 32, s. 2, where a hus- band's petition for dissolution is met by a counter- charge of adultery, cruelty or desertion, or a wife's petition by adultery or cruelty, the Court may give to the respondent the same relief as though his or her counter-charge were an original petition. But where, the wife having instituted a suit against her husband for restitution of conjugal rights, he filed a separate petition praying for a dissolution of his marriage by reason of his wife's adultery : on an ap- plication on behalf of the wife, to be allowed to reform her answer in the suit for dissolution, and to add a prayer to it for restitution of conjugal rights, the Court held that a decree of restitution is not a relief for desertion, as contemplated by the statute 29 & 30 Vict. c. 32, and that, therefore, such an addition would {u) Burroughs v. Burroughs, 444. 31 L. J., P. M. & A. 124; (x) Osborne V. Osborne, 33 Bremner v. Bremner, 12 W. R. L. J., P. M. & A. 38. Digitized by Microsoft® c 32. PRACTICE AND PLEADINGS.- 187 be useless ; it further held that the suit for restitution should be stayed until that for dissolution had been disposed of (y). [Draw your answer containing the facts on which Directions you rely, and where the respondent is husband or answer. wife of the petitioner {if it contains matter other than a simple denial of the facts stated in the peti- tion) draw also an affidavit verifying such other matter, and (in cases of nullity , judicial separation, dissolution or jactitation of marriage) containing a statement that there is no collusion or connivance between the parties, unless collusion or connivance be the defence (in which case see ante). Put a 5s. stamp on the answer, and take it and the affidavit to the registry : the proper officer will there file them : de- liver to the petitioner, or his proctor, solicitor or at- torney, a copy of the answer, the same day (z). J Replication, &c. — Within fourteen days from the Replication . . ot and subse- filmg of the answer the petitioner may file a reply, quent pleadings. and the same period is allowed the respondent for bringing in and filing any further pleading by way of rejoinder or any subsequent pleading (a). There is no rule directing a replication or subsequent pleading to be accompanied and verified by affidavit, in case fresh matter be alleged ; but the practice is, where a replication or subsequent pleading extends beyond a mere denial, for such an affidavit to be filed. The directions given for filing an answer, and delivering a Directions copy to the opposite parties, apply to a replication or replication or any subsequent pleading (b), and the stamp required is pleading. the same. [ When the pleadings on being concluded have raised any questions of fact, the petitioner within fourteen days from the filing of the last pleading, (y) Drysdale v. Drysdale, 36 (a) Rule 32, 1866. L. j., P. & M. 39. " (b) Rule 33, 1866. 0) Rule 29, 30,31, 1866. Digitized by Microsoft® 188 PRACTICE AND PLEADINGS. or at the expiration of that time, on the next day appointed for hearing motions in the 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 ques- tions of fact to be tried by a special or common jury (c).] Motion for These rules give rise to what is called the motion directions, «■,. . . , . . n i /-* for directioDS, which is an inquiry of the Court as to how it will direct the truth of the matters in ques- tion to be ascertained. Before this can be done an affidavit of the appearance, or search for and non-ap- pearance ( as the case may be) of the respondent and co-respondent, if any, must be filed (d) : and this affidavit should be made shortly before the motion is made ; at least in cases of non-appearance, as the Judge Ordinary refused to direct the mode of trial How to pre- where the affidavit was three weeks old (e). — [Pre- pare it. v L pare a short statement setting forth the style and object of the cause before the Court, the names and descriptions of the parties, the proceedings already had in the cause (f), viz., the filing of the petition and affidavit, the service of the citation, the affidavit of personal service thereof, if effected, in case of non-appearance, the search of the registry, and non- appearance, or appearance, as the case may be, the notice of the motion given to the opposite party appearing (g), and also any interlocutory proceed- ings which may have been taken, with the dates of each. Leave in the registry, with the case, the affi- davits in support (if any), and all original docu- ments (if any) referred to in such affidavits, or to be (c) Rule 40, 1866. another, 27 L. J., P. & M. 51, (d ) Wells v. Wells, 27 L. J., note. P. & M. 51, cited in note to (/) Rule 147, 1866. Norris v. Norris and Gyles, ibid. {g) Rule 115, 1866. ^e) Badcoclc v. Badcock and Digitized by Microsoft® PRACTICE AND PLEADINGS. 189 referred to by counsel on the motion (h). File this case Motion for n - ,./. directions. jor motion and leave these affidavits or documents (if any) three clear days, exclusive of Sunday, before the motion is to be heard. If the other side have ap- peared, give them notice before you file the state- ment.^ — The above are the general requisites of a motion for directions, but the practitioner must refer to the directions given subsequently (see page 205) for motions in general, and to rules 115, 147, 148, 149, and 150, as the same are applicable to motions for directions as well as all other motions. The Court now generally takes motions every Tuesday ; the above proceedings must therefore, in such a case, be filed before two o'clock, p.m., on the preceding Thursday. The motion must be made in Court by counsel, or by the petitioner in person, and if any particular mode of trial is desired, as a special or common jury (i), or by oral evidence before the Court, or by affidavit, it should then be mentioned. Where the pleadings are complete, the Court will, upon the application of a petitioner, direct the mode of trial, though he may not have complied with an order to furnish parti- culars (k). But the pleadings must be complete ; for Pleadings .„-,... n . t i must be where m a suit for dissolution ot marriage by a hus- complete, band, the respondent and co-respondent traversed the adultery, and the respondent further counter-charged adultery and cruelty ; the petitioner having allowed the time for filing a replication to the respondent's answer to expire without replying or obtaining further time, the respondent moved the Court to order the trial of this cause ; it was held, the pleadings being incomplete, the Court could not order the mode of trial (I). (h) Rule 149, 1866. P. M. & A. 128. (z) Taylor v. Taylor, 32 L. (I) Broadwoodv. Broadwood, J., P. M. & A. 126. 34 L. J., P. M. & A. 10. (It) Gough v. Gough, 32 L. J., Digitized by Microsoft® 190 PRACTICE AND PLEADINGS. Motion for directions. Power to direct issues. Parties may demand a jury in dis- solution ; but not in other suits, except claim for damages. Must have a jury in a claim for damages. Where, however, issue has been joined in a matri- monial suit, the Court will not refuse to give direc- tions as to the mode of trial, as such refusal is tanta- mount to a dismissal of the petition, and cannot be appealed from to the House of Lords (m). The Court has power to direct one or more issues to be tried in any Court of Common Law, and either before a Judge of assize in any county, or at the London or Middlesex sittings (n). Where, upon a petition for dissolution of marriage, it appeared that by far the greater part of the witnesses to the facts in the suits resided at a great distance from London, the Court directed issues upon the charges and counter- charges of adultery and cruelty to be tried at the assizes (o). The Court will generally, on the applica- cation of either party, direct that the questions of fact be tried by a jury ; but the parties cannot, in a suit for judicial separation (as they may in a suit for dissolu- tion (p) ), demand it as a right. The Court in such a suit may make the order conditional (q). In suits other than those for dissolution of marriage, the Court may in its discretion refuse to order the cause to be tried by a jury. Where the answer to a petition for restitution of conjugal rights alleged the impotence of the petitioner, and prayed for a decree of nullity of marriage, the Court refused to allow the issue joined on the answer to be tried by a jury, although the respondent asked for one (r). Where a claim for damages against an adulterer is made, the parties must have a jury (s). And the Court has power to order issues of fact to be tried before a jury, though none of the parties to the suit (m) Rowley v. Rowley, 34 L. J., P. M. & A. 97. (n) 20 & 21 Vict. c. 85, s. 40. (o) Richards v. Richards and Jones, 30 L. J., P. M. & A. 48. (p) 20 & 21 Vict. c. 25, s. 28. (q) Marchmont v. Marchmont, 27 L. J., P. & M. 59. (r) Ricketts v. Ricketls, 35 L. J., P. M. & A. 92. (s) 20 & 21 Vict. u. 85, s. 33. Digitized by Microsoft® PRACTICE AND PLEADINGS. 191 apply for one, and even though the respondent object (t) ; Jury. and will generally do so in cases where there is likely to be much dispute as to facts (u). The power of ordering issues to be tried before a jury, however, does not extend to issues raised between the parties on matters which, under the proviso to the 31st section Cannot try discretionary of the first Divorce Act, give the Court a discretion bars, as to dissolving a marriage, though the petitioner's case may have been proved : When, therefore, the case is directed to be tried by a jury, such issues should not be included in the record (x). The deter- mination of such issues rests solely with the Court ; where a cause is tried by a jury, the jury may be asked for a verdict upon such issues as an assistance to the Court in forming its opinion, but their verdict may be dispensedwith ; there is no identity in legal effect between the written statement of questions of fact to be tried, prepared under sect. 38 of 20 & 21 Vict. c. 85, and the nisi prius record in an action (y). The Court will make it part of an order for the trial of a cause by a special jury, that if the applicant does not take the requisite steps for striking the special jury, the other party may have it tried by a common jury (z). Whenever the Judge Ordinary directs the Questions of issues of tact m a cause to be tried by a jury, the jury, questions of fact raised by the pleadings are to be briefly stated in writing by the petitioner, and settled by one of the Registrars. A form is given in the Appendix IV., No. 8; Eule 41, 1866. 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, (?) c — v. C— , 32 L. J., P. (y) Narracott v. Narracolt M. & A. 12. and Hesketh, 33 L. J., P. M. & (u) Ratcliffe v. Ratcliffe and A. 132. another, 27 L. J., P. & M. 60. (z) Morris and Others v. (x) Kretzschner v. Kretz- Owen and Others, 30 L. J., P. schner and Reinecker, 28 L. J., M. & A. 213, note. P. & M. 128. Digitized by Microsoft® 192 PRACTICE AND PLEADINGS. Record for either of the respondents on whose behalf such ques- jury. tions have been raised shall be at liberty to do so (a). After the questions have been settled by the Regis- trar, the party who has deposited the same shall de- liver 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 ap- pointed for hearing summonses in this Court, to alter or amend the same, and his decision shall be final (b). This record will be taken to be a correct statement of the issues raised by the pleadings, and will bind the parties, though really not identical with the plead- ings (c). setting down The next step is to set down the cause for trial or cause. hearing. 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 "Trial." been entered. Rule 44, 1866. The word " trial" in the new rules points to those cases to be tried before "Hearing." a jury, and the word "hearing" to those to be heard before the Court without a jury. Previous to the new rules there was no provision as to setting down a cause for trial except where it was ordered to be tried by a jury (d). It is, however, now provided that in cases to be (o) Rule 42, 1866. Sloate, ibid, (notis). (&) Rule 43, 1866. (d) Hare v. Hare, 32 L. J., (c) Cherry v. Cherry, 28 L. P. M. & A. 7. J., P. & M. 36, and Stoate v. Digitized by Microsoft® PRACTICE AND PLEADINGS. 193 heard without a jury, the petitioner shall, after obtain- setting down cause. ing directions as to the mode of hearing, set down the cause 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 : Rule 45, 1866. Where previous to the new rules five months had elapsed since the Court had directed the cause to be tried without a jury, and the petitioner had not set down the cause for trial, the Court, on the application of the respondent, gave him leave to set it down for trial, if the petitioner should not do so within a fort- night (e). Now, however, it is provided that if the petitioner petitioner /. -i /> i it i.i failing to set fail to file the questions for the jury or set down the down cause. 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 hear- ing, 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 : Rule 46, 1866. A copy of every notice of the cause being set down for trial or hear- ing shall be filed in the registry, and the cause shall come on in its turn, unless the Judge Ordinary shall otherwise direct (/). But no cause is to be called on for trial or hearing ten days to , n intervene until after ten days from the setting down and notice before cause is tried. thereof, save with the consent of all parties (g). But Save hy where the papers required by the practice of the Court consent - to be delivered to the Judges of the full Court three days before the hearing have not been delivered, the (c) Hare v. Hare, 32 L. J., 110. P. M. & A. 7; and Stuart v. . (/) Rule 47, 1866. Stuart, 32 L. J., P. M. & A. (g) Rule 48, 1866. B. Digitized by Microsoft® J 94 PRACTICE AND PLEADINGS. Papers not Court will order the cause to be struck out of the delivered. list (h). Formerly certain causes could only be heard before three Judges, called the full Court (i) ; but now the Judge Ordinary may exercise all powers, before then vested in the full Court, or may call in the assist- Judge Ordi- ance of one Judge, if he thinks it expedient (k) ; and alone. the Judge Ordinary will not, except for some suffi- cient reason, order a suit, which he is empowered by the above section to hear alone, to be heard before the full Court ; the desire of one of the parties that it may be so heard, and the probability that difficult questions of law may arise at the hearing, do not con- stitute a sufficient reason (I). Demurrer. — As to demurrers and objections to pleadings in the Ecclesiastical Courts, see Richardson v. Richardson (1 Hag. 11), Croft v. Croft (3 Hag. 311), Swift v. Swift (4 Hag. 140), Neeld v. Neeld (4 Hag. 266), Montefiore v. Montefiore (2 Add. 356), Evans v. Knight and Moore (3 Phill. 418), Reeves y. Glover (2 Lee, 270), Meadowcroft v. Hugenin (3 Curt. 411), Popkinv. Pophin (1 Hag. 766, notis). Under the Divorce Act and Rules, there is no power to move the Court to dismiss a petition, or to take any step answering to a demurrer, but a responsive plea must be given in (m). But demurrers are sometimes filed, see Wells v. Wells (31 L. J., P. M. & A. 112), and see where one was allowed, Ward v. Ward, 17 July, 1861. But a party cannot plead and demur to the same part of the prior pleading, without leave of the Court (n). And an answer, which in a case at common law would be demurrable, may be struck out (ft) Evans v. Evans, 29 L. J., (I) Becon (falsely called Mac- P. M. & A. 53, and Goffrie v. Make*) v. Bevan, 30 L. J., P. Goffrie and Moore, ibid., note. M. & A. 23. (») 20 & 21 Vict. c. 85, s. (to) Evans v. Evans, 30 L. 10- T. 369. (*) 23 & 24 Vict. c. 144, (n) Leete v. Leete, 31 L. J., s. 1. P. M. & A. 121. Digitized by Microsoft® PRACTICE AND PLEADINGS. 195 on motion (o). And where a petition is objectionable Demurrer, as pleading evidence, the objectionable paragraph may be struck out on motion ( p). And where there was a plea to a petition for a decree of nullity on the ground of the impotence of the respondent, that the peti- tioner had committed adultery, it was struck out as irrelevant (q). And where an answer amounted to a justification, and was too vague in its terms, it was reformed on motion (r). An application for an order what e). But in this case the petition was re- Re-service. served, and the hearing was adjourned (not completed) for further evidence, and when reheard was treated as a new petition (q). Even this is not always essential, as the principle on which amendments should be allowed is, that justice between the parties may be done, as is the practice in the Common Law Courts (r). A petition was allowed to be amended after service, by the addition of statements respecting the settle- ments, and a prayer respecting the same (s). But where the petitioner, after an adjournment of the cause part heard, in order to procure fresh evidence, asks leave to amend his petition by adding a new charge, it is an objection to granting his application that the charge in question had come to his knowledge before the petition in its original form was drawn (t). But leave was granted to amend a petition for dissolu- tion of marriage by adding a claim for damages (u). Where a petition has been set down for hearing, and is afterwards amended and re-served, it must be re- entered in the usual course, and cannot be restored to the place the original suit occupied in the list of causes (#). (o) Story v. Story, 3 Hag. 1861. 738 t (t) Bannister v. Bannister (p) Walker v. Walker, 30 and Davis, 29 L. J., P.M. &[ A. L. J., P. M. & A. 214. 53. (o) Walker v. Walker, 31 (u) Bartlett v. Bartlett and L. J., P. M. & A. 117. Balmanno, 34 L. J., P. M. St. (r) Rowley v. Rowley, 29 A. 64. L. J., P. M. & A. IS. (x) Milner v. Milner, 30 L. \s) Coape v. Coape, 22 May, J., P. M. & A. 103. Digitized by Microsoft® 200 PRACTICE AND PLEADINGS. Amendment. Where a citation has issued for dissolution of mar- Re-service. riage on the ground of adultery and desertion, and the petition is afterwards amended by adding a charge of cruelty, if the respondent has appeared to the original citation, a fresh citation is not requisite (y). And where a respondent is cited by advertisement, and leave to amend the petition is afterwards granted, the amended petition need not be advertized (z). A peti- tion by a husband for dissolution of marriage did not charge adultery, but alleged that the respondent and co-respondent were living and cohabiting together: Neither of the respondents appeared : At the hearing the Court refused to allow the petition to be amended, by inserting a charge of adultery, without re-ser- vice (a). A petition for dissolution of marriage by a husband, alleged that the respondent, at a specified time and place, committed adultery with A.: The re- spondent did not appear : At the hearing the Court refused to allow the petition to be amended, by adding to that charge the words " or with some person whose name is unknown to your petitioner," without re- service (b). When a petition is amended by charging adultery in distinct terms, instead of alleging that the petitioner " is informed and believes," it must be re- served (c). But where at the hearing the adultery at the alleged time and place was proved, the Court allowed such an amendment without re-service (d ). Where a petition for dissolution of marriage has been served, in which a mistake is made in the christian name of the person with whom the respondent is charged to have committed adultery, the Court will allow it to be amended, but it must be re-served (e). (y) Rowley v. Rowley, 29 (J) Wallace v. Wallace, 32 L. J., P. M. & A. 15. L. J., P. M.& A. 47. (z) Smith v. Smith, 32 L. J., (c) Spilsbury v. Spilsbury, 32 P. M. & A. 145. L. J., P. M. & A. 126. (a) Forinan v. Forman, 32 (rf ) Ambler v. Ambler, 32 L. J., P. M. & A. 80 ; Spih- L. J., P. M. & A. 6. bury v. Spilsbury, 9 L. T., N. I 1(e) Love v. Love, 32 L. J., S. 23. P. M. & A. 134. Digitized by Microsoft® PRACTICE AND PLEADINGS. 201 But not if the party has appeared, as the misnomer Amendment. would be thereby cured (f), otherwise if he have not appeared (g~). A petition by a husband for dissolu- tion of marriage charged adultery with Gr. and claimed damages ; the respondent denied the charge ; the co- respondent appeared, but did not file an answer : At the trial, before any witnesses were examined, the claim for damages was withdrawn : The evidence of two witnesses tended to prove that the respondent on the 24th September, 1861, committed adultery with some person unknown, and another witness proved that at the same place and time of day, but on the 17th July, 1861, a man named G-. had passed some hours in the respondent's company : Upon applica- tion of the petitioner, the petition was then amended, by substituting for the charge of adultery with Gr. a charge of adultery with some person unknown : The jury found a verdict for the respondent : Subsequently a rule for a new trial was made absolute upon affi- davits, that the latter witness had made a mistake in her evidence, and that the circumstance sworn to by her took place on the 24th September, 1861 : Upon the application of the petitioner, the Court ordered the petition and record to be amended, by re-inserting the charge of adultery with G-. upon payment of his costs, but refused to allow the re-insertion of the claim for damages (A). Where, in the affidavit verifying the Affidavit . _ . verifying petition tor dissolution of marriage, the co-respon- petition, dent's christian name was stated to be John instead of William, and a similar mistake was made in the cita- tion and petition, the Court allowed the citation and petition to be amended, and did not require the affidavit to be amended (i). And the Court allowed a petition Amendment for judicial separation at the suit of a wife on the out!'" mg (/) Kisch v. Kisch, 4 New (h) Jago v. Jago, 32 L. J., K. 28. P- M. & A. 48. (g) Kisch v. Kisch, 33 L. J., («) Reuss v. Reuss, 32 L. J., P. M. & A. 115. P. M. & A. 168. K5 Digitized by Microsoft® 202 PRACTICE AND PLEADINGS. Amendment, ground of cruelty and adultery to be amended, by striking out tbe charge of adultery, in order that the petitioner's evidence might be admitted in support of the charge of cruelty, the respondent having appeared and pleaded, but directed that any costs incurred relating to the charge of adultery should not be taxed against the husband (k). The Court (in Probate) doubted whether it ought to allow a plea to be added, after issue had been joined, and before the hearing, without an affidavit showing the necessity of such a plea (I). Where a decree nisi by mistake mis-stated the place where the marriage was solemnized, the Court, on motion, ordered it to be amended (m). Although the opposite party has only four days allowed (Rule 36) to amend his pleading in answer to an amended pleading, the Court will, if it be advisable, direct that the cause shall not be heard until the expiration of ten days from that on which the amended pleading in answer was filed (n). Abatement. — In the Ecclesiastical Courts suits of a personal character determined on the death of either the promoter or the defendant (o) ; but abatement of the suit, subsequent to the hearing, did not prevent the Court from pronouncing the judgment, or the Registrar from drawing up the decree (p). And where a party died after argument of a cause and before judgment, the decree should be nunc pro tunc, as if pronounced at the date of the argument, and no revivor was necessary (q). But (in cases for dissolu- Adding plea. Amendment of decree nisi. Answer to amended pleading. (&) Hudson v. Hudson, 12 W. R. 216. (I) Twells v. Clarke and others, 33 L. J., P. M. & A. 49. (m) Skeats v. Skeats and White, 35 L. J., P. M. & A. 47. (n) Hitchcock v. Hitchcock, 36 L. J., P. & M. 40. Co) Schulter v. Hodgson, 1 Add. 326 (notis)i Cheale v. Cheale, 1 Hag. 375. ( p) Belshaw v. Percival, 2 Coop. C.C. 176. (q) Mann v. Ricketts, 2 C. P. Cooper, 35 i Belshaw v. Per- cival, supra ; Eyre v. Holier, 12 Ir. Eq. R. 607. Digitized by Microsoft® PRACTICE AND PLEADINGS. 203 tion of marriage at least) the same rule seems hardly Abatement, to apply to the present Court, for by the death of petitioner a suit for dissolution of marriage abates. If, therefore, he dies after a decree nisi, the Court can- not make it absolute. The petitioner in a suit for dis- Death of peti- solution of marriage died after a decree nisi had been pronounced, and before the time for making it abso- lute had expired : On behalf of the children of the After decree nisi. marriage, the Court was moved to make the decree absolute, in order that an application might be after- wards made under 22 & 23 Vict. c. 61, s. 5, for an order varying the marriage settlement, but the Court rejected the motion (r ). But after a final decree of After decree . absolute. dissolution of marriage, the Court may make an order as to the application of settled property for the benefit of children of the marriage, although the petitioner be dead (s). And where a husband had paid a sum into the Eegistry to meet the wife's costs of hearing and died before the cause came to hearing, the Court made an order for the taxation of costs incurred for the hearing by the wife's solicitors and for the pay- ment to them of such costs out of the fund in the Eegistry, with leave to the solicitors of the husband's executors to attend the taxation (<). And a suit for Ofrespon- dissolution abates on the death of the respondent ; but the Court will not, on the application of the petitioner, order that the petition and affidavit in support of it be removed from the file (m). And where a co-respondent of co-respon- dies pending a suit, a motion should be made to strike his name out of the proceedings (x). Before a party can proceed in forma pauperis he Forma must comply with Rule 25, 1866, by laying a case (r) Grant v. Grant, 31 L. J., 390. P. M. & A. 174. (u) Brocas v. Broeas, 30 L. (s) Ling v. Ling, 34 L. J., J., P. M. & A. 172. P. M. & A. 52. (x) Sutton v. Sutton, 32 L. (0 Hall v. Hall, 3 Sw. & Tr. J., P. M. & A. 156. Digitized by Microsoft® 204 Forma PRACTICE AND PLEADINGS. ... before counsel and obtaining an opinion that he or she has reasonable grounds for proceeding (y). Leave of the The next step is to obtain the order of the Judge. judge. This is obtained by producing to the Judge, at the time the application is made, the case laid before coun- sel, an affidavit by the party or his attorney that the said case contains a full and true statement of all the material facts to the best of his knowledge and belief, and an affidavit by the party as to his income or means of living, and that he is not worth 25Z. after payment of his just debts, save and except his wearing apparel (z). Assignment If the above steps are duly taken the Court will then of counsel L J and attorney, assign counsel and attorney, and this assignment is binding on the party ; for a person suing in forma pauperis to whom counsel has been assigned by the Court, cannot appear by another counsel, until there has been a renunciation, or a new assignment of counsel, or he has been dispauperized (a). who may sue A party who by his business or profession is capable of obtaining a livelihood, although in posses- sion of no property, is not entitled to proceed in forma, pauperis (V). But where a surgeon was admitted a pauper, and swore that he had no patients nor income ; the Court refused to dispauper him on the allegation of the adverse party, that he was capable of earning an income (c). Pauper fail- Where a husband, admitted to sue as a pauper, ing to pro- ceed, 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 dispauperized, and why all further proceedings should not be stayed until such costs be paid (d). (y) Rule 25, 1866. (b) Walker v. Walker, 1 Curt. (>) Rule 26, 1866. 561. (a) Hamer v. Boreham,! Sw. (c) Spratt v. Spratt, 1 Dea. & Tr. 26 j 27 L. J., P. M. & & Sw. Ece. Cas. 276. A. 107. (i) Rule 27,1866. Digitized by Microsoft® MOTIONS AND RULES. 205 An appellant suing not as a pauper in the Court Forms pauperis. below may be admitted a pauper in the Court of Appeal (e). MOTIONS AND RULES — SUMMONSES AND ORDERS. The summary jurisdiction of the Court is exercised by motions and rules, or by summonses and orders. These are of the same nature as those at common Motions. law, and a motion, in like manner, must generally be founded on affidavit. But motions are not made in the Divorce Court quite in the same manner. The Notice of. party desirous of making a motion must in general (unless it be an ex parte motion) serve on the opposite parties appearing, four clear days before the hearing of the motion, a notice of the motion. (See precedent for such notice) (/). The notice must be in writing, and signed by the party or his proctor or attorney ( g). It is sufficient service to leave the notice at the address furnished by such party under Eules 9 or 21 (h). If the order be obtained without due notice to the other side, such order will be rescinded (i). The applicant or his proctor or attorney must also file in the Eegistry the following documents : — 1. Case for motion. 2. Copy notice of motion given to the opposite party appearing (k). 3. Affidavits in support of motion (I). 4. Any original documents referred to in such affidavits or to be referred to by counsel (m). The Registrars appear to have no power to dispense with the filing of any of the above documents. Copies of the affidavits or documents to be used should be delivered to the other side (n). The rule (e) Grindall v. Grindall, 4 (0 Rule 116, 1866. Hag 1 (4) Rule 115, 1866. (/) Appendix IV. (I) Rule 149, 1866. (g) Rule 113, 1866. (>») Rule 149, 1866. (h) Rule 114, 1866. («) Rule 150, 1866. Digitized by Microsoft® 206 MOTIONS AND RULES. Motions. does not state when these should be delivered, but probably they should accompany the notice of motion. The " case for motion" is a short transcript of the proceedings, and should contain — 1. The style and object of the cause in which the motion is made. 2. The names and descriptions of the parties thereto. 3. The proceedings already had, with the dates of the same. 4. The circumstances, if any, on which the motion is founded. 5. The prayer of the party, on whose behalf the motion is made (n). The penalty for non-compliance with any of the above requirements in the case is, that such case will not be received in the Registry, and of course such motion will not be entered in the list of motions and cannot be made. The Registrars have however a power of receiving a case, deficient in any of the above particulars, if they think fit (o). Diyfor. There is a special day fixed for taking motions, generally Tuesday, in each week ; and the above men- tioned documents, on which the motion is to be founded, must be filed in the Registry before two o'clock p.m. on the fourth preceding day, exclusive of Sunday, Christmas Day or Good Friday ( p) : for instance, if Tuesday be the motion day, they must be filed before two p.m. on the preceding Thursday. Ex parte applications, as rules nisi and the like, do not appear to require notice to be given to the other side. It would seem contrary to reason that they should. In the case of O'Kane v. O'Kane and Pal- merston, 2nd February, 1864, a rule nisi, calling on the petitioner to show cause why the petition should not be taken off the file, was obta,ined without notice previously given to the petitioner. This was before (n) Rule 147, 1866. ( p) Rule 128, 1866. (o) Rule 148, 1866. Digitized by Microsoft® MOTIONS AND RULES. 207 the new rules, but there seems to be no reason for Motions. altering the practice. A summons may be taken out by any person in any matter or suit depending in the Court, provided there is no rule or practice requiring a different mode of proceeding (q). There are about nineteen distinct cases where the rules expressly require the application to be made by motion. They are as follows : — 1. Application to dispense with making a co- respondent (r). 2. To substitute some mode other than personal of service of citation (s). 3. To enter an appearance after time (t). 4. For leave to intervene (u). 5. To alter or amend a pleading (x). 6. To direct mode of trial (y). 7. For new trial or rehearing (z). 8. To set down demurrer (a). 9. To direct trial of issues in showing cause against a decree absolute (b). 10. To make decree absolute (c). 11. To order fuller answer from husband to petition for alimony (d). 12. To allot alimony pendente lite(e). 13. To allot permanent alimony (f). 14. To increase or diminish alimony (g). 15. To direct or dispense with mode of service of petition for maintenance (A). 16. To object to or confirm Eegistrar's report of pleadings in suit for maintenance (t). (o) Rule 160, 1866. (z) Rule 62, 18G6. (r) Rule 5, 1866. (a) Rule 67, 1866. (s) Rule 13, 1866; TomMn (6) Rule 76, 1866. v. TomMn, 27 L. J., P. M. & (c) Rule 80, 1866. A. 33 (d) Rule 86, 1866. (0 Rule 20, 1866. (e) Rule 89, 1866. («0 Rule 23, 1866. (/) Rule 91, 1866. (x) Rule 34, 1866; Wright (g) Rule 92, 1866. v. Wright, 1 Sw. & Tr. 80. (A) Rule 97, 1866. (y) Rule 40, 1866. (i) Rule 102, 1866. Digitized by Microsoft® 208 MOTIONS AND RULES. Motions. Monitions disused. 17. For custody of, or access to, children (k). 18. For writ of attachment (I) ; &. fa. (m), or se- questration (n). 19. To discharge protection order (o). These are specially directed by the rules to be made by motion, and beside them, by the practice, all important or unusual applications should be made by motion. All the other ordinary applications should be made by summons, and not by motion, as it has been laid down that, where an application should be 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 ( p). Some applications are expressly directed to be made on summons, and these if made on motion would, in addition to the loss of costs, be probably rejected. As for summonses, very full rules are given expla- natory of them in the New Rules, 1866, Eules 160 to 168, both inclusive. The practice of the Court is now uniform, and, in- stead of the former proceedings by monition, an order is now substituted ; for instance, instead of a monition to compel a respondent in a suit for nullity to submit to a medical inspection, the Court now grants an order, which is granted on motion : such order must be per- sonally served. EVIDENCE. Evidence. The cause having, in its turn, come on for hear- ing according to the mode directed by the Judge (k) Rule 104, 1866. (1) Ward v. Ward, 29 L. J., P. M. & A. 17. (m) Reed v. Reed, 29 L. J., P. M. & A. 158. (n) Rule 110, 1866. (o) Rule 125, 1866. ( p) Cooke v. Cooke and Allen, 3 Sw. & Tr. 603. Digitized by Microsoft® EVIDENCE. 209 Ordinary on the motion for directions, it is neces- Evidence. sary to consider the nature of the evidence which can be adduced in this Court, and the mode of taking it. Evidence is, 1st, oral ; 2ndly, by affi- , davit ; 3rdly, documentary ; 4thly, by interrogatories ; 5thly, evidence and depositions admissible under the 21 & 22 Vict. c. 108, s. 5. Generally the mode in which the petitioner for dissolution of marriage will be directed to prove his petition when no answer has been filed, during the twenty-one days allowed by Eule 28, is by oral evidence before the Court, without a jury (q). " Subject to such rules and regulations oral evi- " as may be established as herein provided, the wit- " nesses in all proceedings before the Court, where " their evidence can be had, shall be sworn and ex- " amined orally in open Court " (r). " The rules of R U i es of " evidence observed in the Superior Courts of Com- " mon Law at Westminster shall be applicable to " and observed in the trial of all questions of fact " in the Court" (s). See Common Law Procedure Act, 1854, Appendix I. From this section it appears that all the old decisions in the extinct Courts on questions of evidence, and founded on the subtleties of the civil or canon law are now happily abolished, and the rules of the common law are substituted in their place. The Judge Ordinary has no power, even with the Open Court, consent of parties, to exclude the public from Court during the hearing of a cause (f). Notwithstanding this decision, it has since been the practice to hear cases in camera where the parties consent. (q) Norrte v. Norris and 48. Gyles, 27 L. J., P. & M. 51 ; (<) Barnett v. Barnett, 29 Pearce v. Pearce, ibid. note. L. J., P. & M. 28 ; and H. (r) 20 & 21 Vict. c. 85, s. (falsely called C.) v. C, 28 L. 46. J., P. & M. 29. (s) 20 & 21 Vict. c. 85, s. Digitized by Microsoft® 210 EVIDENCE. Examina- The Petitioner. — " The Court may, if it shall tion of peti- tioner. " think Jit, 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 adul- " tery " (w). The meaning of this section is, that, although the petitioner may be examined under it, he can never be cannot mp- offered as evidence to support his case (x) : the only cases where he (or she) has been called, have been cases where the evidence suggested connivance, or collusion, or to account for unusual delay (y), so that the petitioner can hardly be called a witness. And where collusion has been established, the petitioner cannot be examined for the purpose of contradicting or explaining such collusion (a). Rule now This rule is now, however, much modified by a re- cent case ; for where, in a suit by a husband for disso- lution of marriage, the only evidence of the wife's adultery was a confession by her, and proof of some slight familiarities between her and the co-respondent; the Court deemed this evidence insufficient, and under the above section examined the petitioner, who was the sole witness of an act of impropriety conclusively proving adultery, and upon his evidence pronounced a decree nisi, but refused to condemn the co-respondent, who had not been personally served, in costs (a). intervention But in a proceeding by the Queen's Proctor inter- of Queen's Proctor. vening the rule of the Court is not to examine the (u) 20 & 21 Vict. c. 85, s. 82 H. of L. Jour. 41 ; Braham 43. v. Braham, 28 May, 1859. (x) Haswell v. Haswell and (z) Lloyd v. Lloyd and Chi- Saunderson, 29 L. J., P. M. & Chester, 30 L. J., P. M. & A. A. 21, and Astrope v. Astrope, 97. 29 L. J., P. M. & A. 27. (a) Tatham V. Tatham and (y) Morgan's Div. Bill, Sess. Nutt, 33 L. J., P. M. & A. 1843 ; 75 H. of L., App. 260 ; 140. Ashly's Div. Bill, Sess. 1850; Digitized by Microsoft® ETIDENCE. 21 1 petitioner under this section (b). And in a defended Petitioner, suit for dissolution of marriage, the Court will not allow the petitioner to be examined under this section, for the purpose of explaining his conduct, where the matter requiring explanation is one as to which the respondent, if a competent witness, would have been able to give evidence (c). Where the petitioner was in attendance at the cannot be- cross-exa- hearing in pursuance of an order made on the appli- mined, unless by cation of the respondent under this section, the re- permission of r the Court. spondent cannot, in the first instance, and without the permission of the Court, cross-examine the petitioner, but must treat the petitioner as his own witness, unless the Court thinks fit to allow him to cross-examine (d). And where, in a petition for dissolution on the ground of adultery, coupled with cruelty and desertion, the petitioner was examined in support of the charge of cruelty, it was held, that the respondent, who had simply denied the cruelty charged, might cross-ex- amine her, as to her general conduct, for the purpose of impeaching her credit, but her answer as to any matters not bearing upon the issue could not be con- tradicted (e). The principal effect of this section will relate to cases where the proceedings are instituted " in consequence of adultery," and where the peti- tioner could not otherwise be a witness (except in cases within 22 & 23 Vict. c. 61, s. 6). Of course, in all cases instituted otherwise, as nullity of marriage, restitution of conjugal rights, &c, the petitioner can be a witness under 14 & 15 Vict. c. 99, s. 2. Parties to the Suit— By the 14 & 15 Vict. c. 99, Parties, the parties are competent and compellable to give evidence, unless the proceeding be instituted in conse- (6) Harding v, Harding and (d ) Studdy v. Studdy, 28 L. Lance (Q. P. intervening), 34 J., P. & M. 105 ; Giles v. Giles L. J., P. M. & A. 108. and Quarterly, 12 W. R. 20. (c) Baylisv. Baylis, 36 L. J., (e) Baker v. Baker, 9 h. T., P. & M. 130. N. S. 117. Digitized by Microsoft® 212 EVIDENCE. Parties. quence of adultery ; in which case they cannot be called, except it be the petitioner, under the 43rd section of 20 & 21 Vict. c. 85, as above, or in a peti- tion presented by a wife praying that her marriage be dissolved by reason of her husband having been cruelty or guilty of adultery coupled with cruelty, or with desertion, in which latter case the husband and the wife are each competent and compellable to give evi- dence of or relating to such cruelty or desertion (22 & 23 Vict. c. 61, s. 6); but it must be borne in mind, that they are still incompetent witnesses as to any other fact, except such cruelty or desertion, and then only where the petition is originally presented by a wife. For where, in answer to a petition for when set up dissolution of marriage on the ground of adultery, the in answer. wife pleaded counter-charges of cruelty and desertion, and prayed for a judicial separation, it was held, that the wife's evidence was inadmissible to prove such cruelty or desertion (jf)- Nor, when admitted as a witness, can the party be asked, in cross-examination, any question tending to show that such party has been cross-exami- guilty of adultery (g) (this rule, however, is now some- nation. what modified). But the fact that a husband's answer to a suit for restitution of conjugal rights pleads the wife's adultery, and prays a judicial separation, does not render the evidence of the husband inadmissible, if he does not seek for a decree (A). But if he seeks thereby to obtain a decree of judicial separation, his evidence will be inadmissible, as the answer will then be considered a proceeding instituted in consequence of adultery, within the meaning of the 14 & 15 Vict. c. 99, s. 4 : And if he be examined at the hearing, and the Court finds the charge of adultery established, it will dismiss the petition, but will not decree a ju- (/) Whittal v. Whittal and P. M. & A. 24. Hunt, 30 L. J., P. M. & A. 43. (h) Burroughs v. Burroughs, (g) Fisher v. Fisher, 30 L. J., 31 L. J., P. M. k A. 56. Digitized by Microsoft® EVIDENCE. 213 dicial separation (i). And where a petition by a wife Parties. for judicial separation on the ground of adultery and cruelty is amended by striking out the charge of adultery, the wife becomes a competent witness to prove the cruelty, otherwise she would not have been competent, in the original form of the petition, as the 22 & 23 Vict. c. 61, s. 6, applies only to suits for dis- oniyindisso- solution, and not to those for judicial separation (A). An intervention is a part of the original suit, and intervention, the petitioner is incompetent as a witness, except under the 43rd section of 20 & 21 Vict. c. 85. In which case, as is seen above, the Court always refuses to examine him in support of his own case (I). In all cases where the alleged adulterer is made a Co-respond- ent when dis- co-respondent, or in which, on the petition of a wife, missed from the person with whom the husband is alleged to have petent. 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-re- spondent or respondent to be dismissed from the suit, if it shall think there is not sufficient evidence against him or her (m) ; and such party, when dismissed, then becomes a competent witness {n). The evidence of other witnesses will be guided by the same rules as in the Courts of Common Law (o), see 20 & 21 Vict. c. 85, s. 48, supra. Attendance of Witnesses how enforced. — The at- tendance of witnesses may be enforced by writs of subpoena and subpozna duces tecum, which may be served in any part of Great Britain or Ireland (p) in the same way as if issued from one of the Common (z) Burroughs v. Burroughs, (n) Robinson v. Robinson and 31 L. J., P. M. & A. 124. Lane, 29 L. J., P. M. & A. (k) Hudson v. Hudson, 12 178. W. R. 216 ; 33 L. J., P. M. & (o) Ryberg v. Ryberg, 32 L. A. 5. J-, P- M. & A. 121 ; Baker v. (/) Harding V.Harding and Baher, ibid. 145 ; fVittv.Witt, Lance {Q. P. intervening), 34 ibid. 179. L. J., P. M. & A. 108. (p) 20 & 21 Vict. c. 85, s. (m) 21 & 22 Vict. c. 108,8.11. 49. Digitized by Microsoft® 214 EVIDENCE. Subprena. Confronta- tion. Affidavit. "When per- mitted. Law Courts, and with the same facilities for witnesses who wish to declare or affirm, through conscientious scruples, and false evidence is to be deemed perjury, with the same pains and penalties (q). The Court, in a suit for dissolution, has no power to order that the respondent should attend and be confronted with the witnesses for the purpose of identification (r), though aliter in other suits (*). But where a respondent, in a suit for dissolution of marriage, was allowed to appear and answer after the expiration of the time for entering an appearance, it was made a condition, that she should allow herself to be confronted with the witnesses for the petitioner, for the purpose of being identified (t). A decree of confrontation was granted in a suit for nullity of marriage (u). Evidence — Affidavit. — "Provided that parties, ex- " cept 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 affi- " davit 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-examina- " tion may be re-examined orally in open Court as " aforesaid by or on behalf of the party by whom " such affidavit was filed" (x). There have been very few cases where the Court has allowed the parties "to verify their cases in whole or in part by affidavit." It was permitted (the other parties consenting) where the petitioner had recovered substantial damages in an action (y) (g) 20 & 21 Vict. c. 85, s. 50. (r) Hooke v. Hooke, 28 L. J., P. & M. 29. (s) Searle v. Price, 2 Hag. Con. C. 192. (t) Hindmarsh v. Hindmarsh and Hussey, 1 L. R. 24. («) Enticknap v. Rice, 34 L. L., P. M. & A. 110. (x) 20 & 21 Vict. c. 85, s. 46. (y) Ling v. Ling and Croker, 27 L. J., P. & M. 58. Digitized by Microsoft® EVIDENCE. 215 for crim. con., and where there had been a sentence of Affidavit, divorce a mensa et thoro (z), but not where nominal damages only had been recovered (a), and where the husband had been convicted of bigamy before the Judge Ordinary in 1852, and the witnesses resided in Huddersfield and Oldham (i) ; the petitioner was allowed to prove it in part (viz. the marriage), where the witnesses to that part of the case resided in Scot- land, and the motion was unopposed (c). The deci- sions at first sight seem to be somewhat contradictory, but on consideration their principle may be traced, and it is easier to say what is not a ground for allowing the case to be proved by affidavit than what is. Saving of Expense. — Petition for dissolution, where almost the only evidence required was proof of a second marriage in New York, and the motion was grounded on the great saving of expense, rejected (d). Difficulty in getting the Witnesses, who were resi- dent in Paris. — Petition for dissolution ; motion on the above ground that the petition be heard by affi- davit, rejected (e). That the Petitioner was poor, and Witnesses re- sided in the North of England. — Motion that petition be proved by affidavit, rejected (_/*). That Petitioner had recovered nominal damages, and that the other side consented. — Motion that the petition be proved by affidavit, rejected, the Judge Ordinary observing, that " the consent of the other side is an additional reason for refusing the appli- cation" (g). But the Court will allow bigamy to be (s) Armitage v. Armitage and (d ) Deck v. Deck, 28 L. J., Macdonald, 27 L. J., P. & M. P. & M. 30, note. 50. (<0 Mills v. Mills, 28 L. J., (a) Potts v. Potts and another, P. & M. 30, note. 1 Sw. & Tr. 181. (/) Rylance v. Rylance, 28 (J) March v. March, 28 L. L. J., P. & M. 31, note. J., P. & M. 30. (g) Potts v. Potts, 1 Sw. & (e) M'Kechnie v. M'Kechnie Tr. 181 ; Walton v. Walton and and Menzies, 28 L. J., P. & M. Hibbert, 28 L. J., P. & M. 81, 31. note. Digitized by Microsoft® 216 EVIDENCE. Affidavits. When to be filed. Counter affidavits. Affidavits in reply. proved by affidavit, where there has been a conviction, if the witnesses who would prove it reside at a dis- tance from London, and oral proof would be expen- sive (h). And where no answer was filed in a suit for restitution of conjugal rights, the Court allowed the petition to be proved by affidavit {%). When Affidavits to be filed in Trials upon Affi- davit. — 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 (A). Under Rule 35 of the original rules, which is somewhat similar to the pre- sent rule, it was held that in a suit for dissolution of marriage triable upon affidavits in which there was no appearance, a motion for further time to file affidavits was granted (I). It was doubted whether the old rule applied to cases where there was no appearance, but the wording of the present Rule (51) removes any such doubt, as it obviously applies to all cases. 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 (m). 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 hear- ing of the cause, or to their proctors, solicitors or attorneys («). Affidavits in reply to Counter Affidavits cannot be filed without permission of the Judge Ordinary or of the Registrars in his absence (o) ; but where a rule (ft) Macartney V. Macartney, 36 L. J., P. &M. 38. (i) Ford v. Ford, 36 L. J., P. & M. 86. (k) Rule 51, 1866. (1) Davis v, Davis, 33 L. J., P. M. & A. 139. (m) Rule 52, 1866. (n) Rule 53, 1866. (o) Rule 54, 1866. Digitized by Microsoft® EVIDENCE. 217 nisi for a new trial has been granted on affidavits, and Affidavit. affidavits have been filed in answer, the party obtain- ing the rule will not be allowed to file affidavits in reply till the rule is argued (p). As to the means of getting affidavits on the file when the specified time has elapsed, see Rule No. 145, (1866) ; as to what is common and requisite to all affidavits, see infra, and Rules from 138 to 146 both inclusive (1866). It must be remembered when a trial is allowed on affidavit, the opposite party have a power to cross-examine the deponents under the following proviso, " but so that Deponent subject to be " the deponent in every such affidavit shall, on the cross-exa- " application of the party opposite, 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-ex- " amined orally in open Court as aforesaid by or on " behalf of the party by whom such affidavit was " filed" (§■). Applications for an order for the attend- Producing deponent. ance of a deponent for the purpose of being cross- examined in open Court shall be made on summons to the Judge Ordinary (r). When leave is granted °rder for to prove a petition by affidavit, the order granting P™ ve *y such leave must be drawn up before hearing, and should be filed with the other papers (s). The following remarks apply to all affidavits to be ah affidavits, used in the Court for Divorce. Affidavits may be sworn before; 1st. Registrars, Before whom surrogates, commissioners for taking oaths in the Court be sworn. of Chancery ; and all persons now or hereafter to be authorized under the Probate Act (20 & 21 Vict. c. 77, s. 27), or under this act (21 & 22 Vict. c. 108, s. 12), may administer oaths (t). (p) Nicholson v. Nicholson (r) Rule 55, 1866. and Ratcliffe, 32 L. J., P. M. (s) Webb v. Webb, 32 L. 3., & A. 135, and see cases there P. M. & A. 63. cited in note. • (t) 21 & 22 Vict. c. 108, s. (?) 20 & 21 Vict. t . 85, s. 12. 46. B. L Digitized by Microsoft® 218 EVIDENCE. Affidavit. 2ndly. In the Isle of Man (see Chitty's Arch. 9th and channel e d-' P* 1527) and the Channel Islands, certain persons islands. practising as solicitors are appointed to administer oaths by the Judge Ordinary (u) ; or affidavits, decla- rations or affirmations may be taken before any com- missary, ecclesiastical judge or surrogate, who on the 25th August, 1857, was authorized to administer oaths there (a;). The persons appointed by the Judge may be found out on application at the registry, in foreign 3rdly. In foreign parts out of her Majesty's do- ner Majesty's minions, affidavits, declarations, or affirmations may dominions. be sworn before persons empowered to administer oaths under 6 Geo. 4, c. 87, or under 18 & 19 Vict. c. 42 ( y) ; where an affidavit is sworn before a notary abroad, it will not be admitted, unless it appears on affidavit, that there was not at the place a British consul or other officer empowered by the 18 & 19 Vict. c. 42, to take affidavits, and that a notary had, by the law of such place, authority to take affida- vits (z). Scotland, 4thly. In Scotland, Ireland, or any colony, island, Ireland, or colony. plantation or place out of England under the dominion of her Majesty, affidavits, declarations or affirmations may be taken before any Court, Judge, notary public, or persons lawfully authorized to administer oaths in such country, colony, island, plantation or place respectively, and the seal or signature, as the case may be, of any such Judge, &c, will be taken judicial notice of by the Registrars and other officers of this Court (a). The Court would judicially notice the seal on a notarial certificate verifying an affidavit sworn before a magistrate abroad (b) ; and any person (u) 21 & 22 Vict. c. 108, also Comyn v. Comyn and Hum- s. 16. phries, ibid, in notis. (x) Ibid. s. 21. (a) 21 & 22 Vict c. 108, s. ()," and this is explained in Gresley's Treatise on Evidence (p. 328) as being the law, on the ground of public policy as well as of the parties not being the same. In the Courts of Common Law for a judgment to be conclusive, it must have been specially pleaded by way of estoppel if possible, otherwise the matter was at large, i. e., the judgment was only evidence for a jury not conclusive evidence. It is apprehended that (c) Jenkyn v. Jenkyn, 1 Dea. & Sw., Ec. Ca. 268. (d) Lowe v. Lowe, 1 Dea. & Sw'., Ec. Ca. 130. (e) Wilkinson v . Gordon, 2 Add. 161. (/) Rex v. Boston, i East, 572 ; Smith v. Rummens, 1 Camp. 9 ; Hathaway v. Barrow, ibid. 151 ; Justice v. Gostling, 12 Com. B. 39. (#) Jameson v. Leitche, Milw. Ecc. Ir. R. 690. Digitized by Microsoft® EVIDENCE. 229 similar maxims would obtain in the Divorce Court, Estoppel. but the question is not clearly determined. Evidence in particular Suits. — In a petition for dis- solution of marriage by a husband, the husband must show the marriage and the subsequent adultery, and some evidence should be given of his conduct towards the wife previously to the adultery (h). The proof of ■ marriage is essential, because no marriage, no adultery, and the Court can take nothing pro confesso (t). Proof of Marriage. — This is usually supplied by Marriage. the production of an examined copy of the register, or one purporting to be signed by the proper officer, or person (though the evidence of a person present at the marriage will supersede the necessity of the regis- ter and sufficiently establish the marriage (k), and some evidence of identity, i. e., that the persons named in the register are the petitioner and respon- dent. "Identification is a question of fact, to be " proved like any other conclusion of fact, and esta- " blished either by direct or circumstantial evidence : identity may be " it was urged by the co-respondent's counsel, that a proved by " direct oath to the identity of the respondent was stantiai evidence. " necessary : but to hold the rule thus stringently, " and to require the direct oath of a witness, would " be to add nothing in many cases to the cogency of " the proof, while it might add much to the difficulties " attending its production" (V). The identity of the parties may be shown by a wit- By hand- ness, who knows their handwriting, and can prove that the handwriting in the register is theirs, and this need not be one of the subscribing witnesses (m), nor is it necessary to produce the original register for that purpose, but the witness may speak to the hand- (h) Boddington v. Bndding- J., M. C. 10. ton and Nossiter, 27 L. J., P. & (I) Rooker v. Rooker and M. 53. Newton, 33 L. J., P. M. & A. (i) Evans V. Evans, 28 L. J., 42. P. & M. 137, note. (m) Birt v. Barlow, 1 Doug. (A) Q. v. Mainwaring, 26 L. 172. Digitized by Microsoft® writing. 230 EVIDENCE. By cohabita' tion. By admis. sion. Marriage. writing without producing it (re). Even where the handwriting of one of the parties was not sufficiently proved, but there were other circumstances, which, taken with the evidence of her handwriting, satisfied the Court (o) : held sufficient. And where it was proved first, that the party pro- ceeding in the cause, was the same party who was married on such a day ; and secondly, that from that day he continued to cohabit with the very party against whom the suit is promoted, as husband and wife : Held, the marriage was proved (p). In a suit for dissolution, the identity was held to be sufficiently established, where the respondent re- presented herself as the wife to the father of the petitioner, her acknowledgment of the service of the citation, and her appearance in the cause (q). But it appears that the fact of an appearance being given to the citation, no further steps in the suit having been taken by the defendant, will not be considered at the hearing as any proof of identity (r). As to evidence of identity, see Simpson v. Dismore (9 M. & W. 47), Russell v. Smith (Ibid. 818), and Greenshields v. Photographs. Crawford (Ibid. 3.14). A photograph was considered to be no evidence of identity (s) : But now photo- graphs are continually used to prove identity. The Court has no power in a suit for dissolution to order the respondent to be confronted for the purpose of identification (t). But, in accordance with the prac- tice of the former Ecclesiastical Courts, such an order may be made in other suits, i. e., not being for disso- lution of marriage (u). certificate. The certificate of registry is not essential to the (k) Sayer v. Glossop, 2 Exch. 409 ; Bain v. Mason, 1 C. & P. 202. (o) Cripps v. Cripps, 1 No. of Cas. 530. (p) Pollard v. Pollard, 1 No. of Cas. 532. (q) Deane v. Deane, 12 Jur. 63. ' (r) Deane v. Deane, 1 Sw. & Tr. 90. ( s) Pearce v. Pearce, 15 June, 1858. (t) Hooke v. Hoolce, 28 L. J., P. & M. 29. (u) Searle v. Price, 2 Hag. Con. C. 192. Digitized by Microsoft® EVIDENCE. 231 proof of marriage (as). Marriage may be proved by Marriage. reputation ( y), or by cohabitation (z) ; it is not neces- Reputation. sary in the first instance to give evidence of the regular publication of the banns, or of the regularity of the licence : for the presumptive proofs of marriage have not been taken away by the Marriage Act (a). Mar- riage may be proved by the usual presumptive evi- dence of marriage, reputation and cohabitation (b). In these cases, however, the marriage was rather a collateral question than the gist of the suit. Where in a suit by a husband for dissolution of mar- riage the only evidence of the marriage was that the petitioner and respondent had, in May, 1850, left England together for the purpose of being married at Gretna Green, that they shortly returned and stated that they had been married, and. lived together for many years as man and wife : Held, sufficient evidence of the marriage (c). The copy of the Register. — " Whenever, by any 8 & 9 vict. " act now in force or hereafter to be in force, any " certificate, official or public document ... or any " certified copy of any document . . . entry in any " register or other books, shall be receivable in evi- " dence of any particular in any Court of Justice, or " before any legal tribunal . . . the same shall re- " spectively be admitted in evidence, provided they " respectively purport to be . . . sealed and signed, " or signed alone, as required . . . without any proof " of seal or stamp, where a seal or stamp is necessary, " or of the signature, or of the official character of the " person appearing to have signed the same, and with- " out any further proof thereof, in every case in which (x) Northey v. Cock, 2 Add. Dewchurch, 1 Wm. Bl. 367. 294. (b) Kay v. Duchess dePienne, (y) Reed v. Passer, IPeake 3 Camp; 123; Birt v. Barlow, Ca. 305. 1 Doug. 171. (a) B. N. P. 114. (c) Patrickson 1. Patrickson, (a) St. Devereux v. Mkch 35 L. J'., P. M. & 48. Digitized by Microsoft® 232 EVIDENCE. Marriage. 14 & 15 Vict. c. 99, 8. H. Copy of re- gister. Presump- tion. Omnia prse- sumuntur rite acta. " the original record would have been received in evi- " dence." " Whenever any book or other document is of " such a public nature as to be admissible in evidence " on its mere production from the proper custody, and " no statute exists which renders its contents prove- " able by means of a copy, any copy thereof, or ex- " tract 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 reason- " able time for the same." Where to support a plea of coverture the defendant stated that she and her husband, being Roman Catho- lics, were married at a Roman Catholic chapel in London, in the usual manner in which French mar- riages were celebrated : she also put in what pur- ported to be a certificate, by a French priest, of the marriage : but she was unable to say whether the registrar was present (6 & 7 Will. 4, c. 85, s. 20) during the ceremony or not, or whether the chapel was registered (6 & 7 Will. 4, c. 85, s. 42), and the certificate was silent on both points : held, notwith- standing, that there was evidence upon which the jury might presume that the marriage was duly cele- brated (rf). The doctrine of omnia prmsumuntur rite acta was acted upon in a similar manner in Q. v. Mainwaring (26 L. J., M. C. 10). Documents ad- missible in Ireland without proof of seal, stamp or (d) Sichel v. Lambert, 12 W. R. 312. Digitized by Microsoft® EVIDENCE. 233 signature, &c, are similarly admissible in England (e). Marriage. Neither of the above statutes apply to Scotland (/). Certain non-parochial registers of births, baptisms, Non-paio- chial re- deaths, burials and marriages, are made evidence, either gisters. by producing them, or certified extracts from them, upon giving the opposite party previous notice of the intention to use them () ; and a French vice-consul was allowed to prove the French marriage law by production of a printed edition of the Cinq Codes, and by his own testimony (r) ; and a merchant proved that, by the law of Chili, a book was kept for the registration of marriage (s). The competency of the witness is a question for the Court. See also now 14 & 15 Vict. c. 99, s. 7. A marriage solemnized by a minister of the Church of England in the chapel or house of any British ambassador or minister, residing within the country to the Court of which he is accre- dited, or in the chapel of or belonging to any British factory abroad, or within the British lines, by any chaplain or officer, or other person officiating under the orders of the commanding officer of a British army serving abroad, are as valid as if the same had been solemnized within his Majesty's dominions, with a due observance of all forms required by law (t). This (n) 2 Hag-. Con. C. 111. (o) 20 & 21 Vict. t . 85, s. 22. (/>) Linda v. Belisario,! Hag. Con. C. 248. (q) Sussex Peerage Case, 11 CI. & Fin. 85. (r) Lacon v. Higgins, 3 Stark., N. P. C. 178. (s ) Abbott v. Abbott and ano- ther, 29 L. J., P. M. & A. 57. (() 4 Geo. 4, c. 91, s. 2 ; see also 9 Geo. 4, c. 91 ; WaMe- grave Peerage, 4 CI. & Fin. 649. Digitized by Microsoft® EVIDENCE. 235 statute applies when one of the parties is a British Marriage. subject, although the other is a foreigner («). Foreign Registers. — An examined copy of the Foreign re- gister. register of a marriage in the Swedish ambassador s chapel at Paris is not evidence (x). Similarly, the copy of a register of baptism kept in the island of Guernsey was held (y) inadmissible : but it was Guernsey, held (z) that a marriage was proved by the produc- tion of a collated copy of a register, and proof of the identity of the parties ; but this was a decision by the Ecclesiastical Court, and the rules of evidence there can hardly be relied upon in the Court for Divorce ; at all events, in suits for dissolution of marriage. However, a document was held admissible under 14 & 15 Vict. c. 99, s. 14, which purported to be an extract from a register of marriages in Chili, and to be signed chilii by the curate-rector of the church where it was solem- nized (a) ; and where it was shown that registers of Lisle. marriage were kept at Lisle before the first Revolu- tion, by official authority, and were authentic docu- ments, copies of the documents were admitted (b). The certificate of the sessional clerk in Scotland, Scotland, whose duty it is to record marriages, but who has no legal authority to keep registers, was rejected (c) ; so was the certificate of a Gretna Green marriage by a person who celebrated it {d). A certificate of a Gretna Green marriage is not pleadable, qua certificate is in proof of that marriage, but it may be as a constituent wholly or in part of the mar- riage, accompanied by averments (to be sustained (m) Pertreis v. Toncleur, I 29 L. J., P. M. & A. 57. Hag. Con. C. 139; Re Wright, (b) Biddulph v. Lord Ca- 25 L. J., Ch. 621. moys, (not reported, mentioned (x) Leader v. Barry, 1 Esp. by Keating, J. ]n Abbot v.Abbot 353. andGodoy, 29 L. J., P. M. & A. (y) Huet v. Le Mesurier, 1 58. Cox Ca. in Ch. 275. (c) Saunders v. Saunders, 10 (z) Coode v. Coode, 1 Curt. Jur. 143. 766. (d ) Nokes v. Milward, 2 Add. (a) Abbot V.Abbot andGodoy, 386. Digitized by Microsoft® 236 EVIDENCE. Marriage. Vireiuia. Where no register is kept. Scotch registers. Irish regis- ters. Marriages in India. by evidence of such being its effect in, and by the law of Scotland (e) ) ; and a certificate of a foreign marriage, not purporting to be a copy of an entry in the register of marriages kept by the law of that country, but only containing a reference to that register, cannot be received as evidence, although it would be evidence in the foreign Courts (f). And where in a suit for dissolution of marriage it appeared that the petitioner and respondent had lived together for five years in Virginia, and were received in society as man and wife ; that by the law in force in Virginia, when cohabitation began, no religious ceremony was necessary to the validity of a marriage, nor was any registry of marriages required to be kept, and that in consequence of war in Virginia the record of any re- ligious ceremony which might have taken place could not now be obtained : held, there was sufficient proof of the marriage (g). As to registers kept and made evidence in Scotland, see 17 & 18 Vict. c. 80; extracts made evidence, sect. 58 ; and 19 & 20 Vict. c. 96 ; and in Ireland, 7 & 8 Vict. c. 81. Before the passing of this act, where a clergyman celebrated a marriage in a private house and gave the parties a certificate, and made an entry in a register book which he kept, it was held that the marriage was valid and the certificate admissible evi- dence, but the register not admissible (A). As to re- gistration of marriages celebrated in India, see 14 & 15 Vict. c. 40. The marriages of British subjects in India and most of the British colonies and settlements, are governed by the English law as it existed before the 26 Geo. 2, except where it is varied by the law of the (e) Montague V. Montague, 2 Add. 375. (/) Finlay v. Finlay, 31 L. J., P. M. & A. 149. (g) Rooker v. Rooker and Newton, 33 L. J., P. M. & A. 42. (ft) Stochbridge y. Quicke, 3 Car. & Kir. 305. Digitized by Microsoft® EVIDENCE. 237 particular colony. And marriages of British subjects Marriage. in British plantations are governed by the common British pian- tations. law of England, unless otherwise enacted by the Im- perial legislature, or that of the colony ; and evidence of the solemnization by a clergyman of the Church of England, according to the rites of that church, and of cohabitation, is sufficient proof of a marriage between British subjects in Norfolk Island, then a British penal settlement («'). And a marriage solemnized between two British sub- British jects in a British colony, according to the rites and ^ " ceremonies of the Church of England, by one of its ministers, who is the officiating minister of the parish, where the ceremony took place, is "prima facie a valid marriage (K). Some doubts having arisen as to the validity of scotch cier- J gymen in marriages by members of the Church of Scotland East indies. celebrated ~ in the East Indies, by ministers of the Church of Scotland, the 58 Geo. 3, c. 84, was passed for the purpose of giving them validity ; by the second section, certificates in duplicate are directed to be made immediately on the solemnization of the marriage by the minister, one to be given to the parties, the other to be transmitted to the secretary of the particular Indian re- gisters, presidency where the marriage takes place. Copies of the latter certificate would be evidence under 8 & 9 Vict. c. 113, s. 11, and 14 & 15 Vict. c. 99, s. 14. The whole law of marriages in India is now amended (though the 58 Geo. 3, c. 84, is still in force) by 14 & 15 Vict. c. 40, under which marriages are now registered, and the evidence of marriages by copies of the registers is assimilated to the evidence (under 6 & 7 Will. 4, c. 86) of marriages in England. Jews and Quakers are excepted from the marriage j e w S ana acts, 26 Geo. 2, c. 33, and 4 Geo. 4, c. 76 ; these mar- Quakers - (i) Limerick v. Limerick, 32 (k) Ward and Coode v. Day, L. J., P. M. & A. 92. 1 Robert. 762. Digitized by Microsoft® 238 EVIDENCE. Marriage. riages must therefore be proved as marriages before that act. But now, notice must be given to the regis- trar of any such intended marriage, and a certificate issued by the registrar, which, with evidence of iden- tity, will be proof of the factum of the marriage ; 6 & 7 Will. 4, c. 85 ; 3 & 4 Vict. c. 72 ; and 10 & 11 Vict, c. 58. But such marriages must be celebrated be- tween parties who are both Jews or both Quakers ; 6 & 7 Will. 4, c. 85, ss. 2, 4. Adultery. Proof of Adultery. — It is not necessary to prove an act of adultery at any one particular time or place, but the Court will look to all the circumstances of the case together, and form its own opinion whether they lead to a fair and natural conclusion that an act of adultery has taken place between the parties at some time or other (I), though the Court must be satisfied that a criminal attachment subsisted between the parties, and that opportunities occurred when sexual intercourse might, with ordinary facility, have taken place — mere proof of criminal intention will not suf- fice (m). How far mere undue familiarity will sup- port a charge of adultery was discussed in Winscom v. Winscom, and Plowden (n). The law does not re- quire direct evidence of the very act committed at a specific time and place ; but the Court must be satis- fied that actual adultery has been committed (o). Antecedent circumstances elucidate subsequent acts ; and thereby acts taken per se of a doubtful nature assume a very different complexion (p). Evidence of acts of adultery with the co-respondent subsequent to the citation admitted to explain and elucidate the acts alleged in the petition (q). In examining the (l) Grant v. Grant, 2 Curt. 57. (m) Davidson v. Davidson, 1 Deane, 135. (a) 33 L. J., P.M. & A. 45. (o) Hamerton v. Hamerton, 2 Hag. 14. ( p) Weatherley v. Weatherley, 18 Jur. 882. (q) Boddy v. Boddy and Grover, 30 L. J., P. M. & A. 23. Digitized by Microsoft® EVIDENCE. 239 evidence the Court will not take insulated and de- Adultery, tached charges, but the whole together, for one part may throw an important light on the probability and credibility of other parts (r). Witnesses should be required to depose to their belief whether adultery has been committed or not, although the Court cannot rely on such evidence (s). The evidence given by paid witnesses, testes lupi- Testes iu- narum, and accomplices, though liable to suspicion, must be fairly weighed (£). Direct evidence of the fact of adultery is not required, as otherwise relief would often be wholly impracticable (u). Ocular proof is seldom expected, but the proof should be satisfactory and conclusive (x). In the absence of direct proof, adultery was inferred from the whole circumstances of the case as disclosed in evidence, though the Court could not conscientiously say that any act of adultery was proved with reference to any particular time and place (y). Where a husband, Birth of a after a long absence, did not rejoin his wife till the C hiid. r 24th November, 1849, and she nevertheless produced a full grown child on the 18th May, 1850: held, that she had been guilty of adultery (z). And in all cases where strict proof of non-access can be given, the birth of a child has been held conclusive proof. (It would-be strange otherwise !) See Captain Bonham's Case (Macq. H. L. Ca. 600), Mr. Hope Weir's Case (Ibid. 580), Rev. C. Miller's Case (Ibid. 621). Ve- venereal nereal disease seems to be uncertain evidence, as it " is consistent with the adultery of the husband, with the wife's adultery, and with accidental communi- cation of the disease'' (a), though it may be different (r) Durant v. Durant, 1 Hag. (.t) Rix v. Rix, 3 Hag. 74. 748. (y) Faussett v. Fausselt, 7 (*) Crewe v. Crewe, 3 Hag. No. of Cas. 95. 128. (s) Heathcote's Div., 1 Macq. (t) Ciocci v. Cioeci, 18 Jur. H.ofL. Cas.277, Sess. 1851. 194. (o) Colletty.Collett, 1 Curt , (b) Williams v. Williams, 1 678. Hag. Con. C. 299. Digitized by Microsoft® 240 EVIDENCE. Adultery. Collateral circum- stances con- firmed by admission. where a wife charges a husband with adultery (b), but where the husband recriminates, and the wife has been unchaste, the burden of proof is shifted (c). The circumstance of a woman going to a brothel furnishes conclusive proof of adultery (rf), since it would be almost impossible for a woman to go to such a place but for a criminal purpose (e). Where a wife visited a single man at his house, and the windows were closed, and there were letters which could not other- wise be explained, the Court held adultery proved (f). Admissions by Parties — When receivable. The rule in the House of Lords seems to have been that a mere confession should not be received unless it were offered in confirmation of collateral circumstances tending to the proof of adultery, (but see below, Ro- binson v. Robinson and Lane, 1 Sw. & Tr. 362.) Wife pregnant, the husband being in India so as to preclude the possibility of access, confession in a letter held admissible ( Digitized by Microsoft® HEARING. 245 onus of showing that she had lawful cause for with- n; ght t0 drawing from cohabitation lay on the respondent, and egln ' that her counsel, therefore, was entitled to begin : Where the questions of fact raised by the pleadings have been stated in the form of a record, the issues to be tried by the jury must be taken to be those stated in the record, although they may not be identical with those raised in the pleadings (q). So, where in answer to a petition for dissolution of marriage on the ground of the wife's adultery, the respondent does not traverse the alleged adultery, but pleads fresh matter, on which issues are taken by the petitioner, upon the trial of those issues the respondent must begin (r). And where, in such a suit, the wife pleaded that the marriage was null on account of the husband's impotency, the Court held that there being substantially a traverse of the marriage, the petitioner had a right to begin (s). Where the Judge Ordinary is sitting without a jury, as the question of the fact of the marriage must be proved before him, the right to begin is not taken from the petitioner, by the consi- deration that the only real issue in the case lies on the respondent (t). " We had a discussion lately as to " how much of his case the petitioner is bound to " prove in the first instance, and I thought he ought „ " to prove everything which was necessary to entitle P etltl0Ilel l0 " him prima facie to a decree : I think that is the " best rule to adhere to : That will not at all preju- " dice the petitioner's right to produce evidence by " and by, to rebut the respondent's evidence in support f of the counter-charges " (w) (per Judge Ordinary). And where a petition by a husband for dissolution of (q) Cherry v. Cherry, 28 L. P. M. & A. 55. L. J., P. & M. 36. See also (<) Burroughs v. Burroughs, Defences to Dissolution— Tra- 31 L. J., P. M. & A. 56. verse of Facts alleged. (u) Osborne v. Osborne and (r) Bacon v. Bacon, 29 L. J., Martelle, 33 L. J., P. M. & A, P. M. & A. 61. 62, notis. (s) Serrell v. Serrell, 31 L. J., Digitized by Microsoft® 246 HEARING. Evidence in reply. Respondent in person. Priority of counsel. No counsel appearing. marriage claimed damages, and tHe co-respondent tra- versed the adultery and charged the petitioner with cruelty ; and at the trial the petitioner called wit- nesses, as to his general conduct towards his wife ; and, on the part of the co-respondent, evidence was given of specific acts of cruelty : held, that, in reply, the petitioner might call witnesses to contradict the evidence of specific acts of cruelty, but not to prove his general conduct (x). Where the respondent conducts his own case, the most convenient course is, that he should at once call his witnesses, without making an opening speech, then give his evidence, and reserve any comments on the case for his summing-up {y). When respondent and co-respondent appear by different counsel, the case of the respondent should generally take priority of that of the co-respondent ; but, by arrangement of counsel, the case for the co-respondent may be taken first (z). If at the hearing no one appears on behalf of the petitioner, the respondent has a right to have the peti- tion dismissed (a) ; and where a jury has been sworn to try issues in a matrimonial suit, and neither party appears, the Court will discharge the jury (b) ; and if the respondent does not appear, proof must be given at the hearing, of the identity of the respondent and the person served with the citation (c). And where, at the trial of issues joined in suit for dissolution of marriage, no one appearing on behalf of the peti- tioner, the jury returned a verdict that the respondent had not committed adultery with the co-respondent ; no application having been made for a new trial, the Court upon the motion of the co- respondent dis- (*) Narracott v. Narracolt and Hesketh, 33 L. J., P. M. & A. 61. (y) Curtis v. Curtis, 27 L. J., P. & M. 73. (z) Robinson v. Robinson, 27 L.J., P. & M. 91. (a) Vesmarest v. Desmarest, 31 L. J., P. M. & A. 34. (6) Haydon v. Haydon, 30 L. J., P. M. & A. 112. (c) Goldsmith v. Goldsmith, 31 L. J., P. M. & A. 163. Digitized by Microsoft® HEARING. 247 missed the petition, and condemned the petitioner in costs (d). Where, at the hearing of a suit for disso- Evidence at lution of marriage, the petitioner in pursuance of an order under sect. 43 of 20 & 21 Vict. c. 85, is present, if the Court allows the counsel of the respondent to call him, he must be treated as the witness of the respondent : he cannot be cross-examined by the re- spondent, and before he is sworn the respondent's case must be opened (e). Where a petitioner in a suit for judicial separation was asked, in cross-examination, if she had not instructed her solicitor to institute a suit for restitution of conjugal rights, instead of a suit for judicial separation ; it was held, she was bound to answer the question (f ). The co-respondent's counsel cannot cross-examine a Cross- examination witness upon such part of his evidence as is not evi- »y co- respondent. dence against the co-respondent (g). Where, in answer to a petition for dissolution of marriage, on the ground of the wife's adultery, the respondent does not traverse the alleged adultery, but pleads fresh matter, on which issues are taken by the petitioner, when these issues have been disposed of by the jury, witnesses called to prove the petition cannot be cross-examined by the respondent (h). The respondent's counsel cannot re- serve his comments on the petitioner's evidence until he sums up his own evidence, and the co-respondent's counsel, if he calls no witnesses, should address the Court after the opening speech of the respondent's •counsel ; and the co-respondent's counsel, by examin- ing the witnesses of the respondent, adopts them as his own (i). Query, whether any document can be put in evi- (d ) Potts v. Potts, 32 L. J., Burgess, 29 L. J., P. M. & A. P. M. & A. 32. 54. (e) Giles v. Giles, 32 L. J., (h) Bacon v. Bacon, 29 L.J. , P. M. & A. 209. P.M. & A. 61. (/) Maccan v. Maccan, 32 {%) Glennie v. Glennie, 32 L. L. J., P. M. & A. 29. J., P. M. & A. 17. (g) Pearman v. Pearman and Digitized by Microsoft® 248 INTERVENTION. Hearing. dence after the conclusion of the hearing of a cause, and before sentence given, unless by consent of the parties (_/). Adjourn- The Court has power to adjourn the hearing of a the'statute! petition for further evidence or consideration, under the 44th section of 20 & 21 Vict. c. 85 (k). Where adultery was not recriminated originally, the Court adjourned the case to allow the co-respondent an opportunity of pleading the counter-charge and other matters (I). Where the petitioner's counsel opened evidence which was admissible on the record for the jury but took the other parties by surprise, the Judge adjourned the trial, and, as the adjournment was made necessary by the conduct of both parties, re- fused to make any order as to the cost of such ad- journment (m). But, semble, where a cause has been part heard before the full Court and adjourned for further evidence, the Judge Ordinary, sitting alone, has not power to dismiss the petition, or to allow an amendment to be made thereon : Semble, also, that the Court will not dismiss the petition on the prayer of the petitioner after evidence has been given in the cause entitling the respondent to a matrimonial remedy (n). Where an indictment had been found against two of the witnesses for perjury in their depositions in a cause pending in the Consistory Court, the Court refused to delay the hearing till the indictments were tried (o). INTERVENTION. The present Divorce Court may be considered as (j) Gipps v. Gipps and Hume, 3 Sw. & Tr. 125. (k) Ward v. Ward, 1 Sw. & Tr. 1 85 ; Robinson v. Robinson and Lane, ibid. 384. (0 Plumer v. Plumer, 29 L. J., P. M. & A. 63. (m) Bancroft v. Bancroft and Rummy, 3 Sw. & Tr. 610, and 31 L. j., P. M. & A. 31. (n) Bannister v. Bannister, 29 L. J., P. M. & A. 53. (o) Maclean v. Maclean, 2 Hag. 601, Digitized by Microsoft® INTERVENTION* 249 made up of two different jurisdictions, one novel and the creature of the statute extending over suits for dissolution of marriage, and possibly also over suits for judicial separation founded on desertion, that being a new ground given expressly by 20 & 21 Vict. c. 85, s. 16. The other ancient and inherited from the extinct Courts by virtue of the 6th section of the same act. In treating of the rights and liabilities of third parties, especial regard must be had to the nature of the suit, and to which branch of jurisdiction it may belong. It follows, therefore,, that in causes coming under the first head of jurisdiction, the only powers of third parties to intervene must be looked for in the Statute Book itself, and that there was no such right inhe- rent before the 23 & 24 Vict. c. 144. This has been expressly decided : for where Y. petitioned for a disso- lution of marriage on the ground of her husband's desertilt and adultery ; and he did not appear : D., having no legal private interest, prayed to be allowed to prove at the hearing that Y. had herself been guilty of adultery : The Court held that neither the Divorce Act, nor the rules and orders made under its provisions, gave the Court any authority to admit such intervention (p). In this particular case it seemed doubtful whether such an intervention would have been allowed in any suit ; but the judgment went on the ground that at that time no third party could intervene in cases for dissolution of marriage. To remedy this defect, as well as to protect the Court from collusive suits, the following act was passed, — 23 & 24 Vict. c. 144, s. 7. " Every decree for a Decree niii. " divorce shall in the first instance be a decree nisi, (p) Y— v. Y— 8 W. R. 273. as Chadded v. Chaddocjt, 29 See also the same case reported L. J., P. & M. 55. M 5 Digitized by Microsoft® 250 INTEEVENTION. Decree nisi. " not to be made absolute till after the expiration of " such time, not less than three months 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 " 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 jus- " tice may require ; and at any time during the pro- " gress_ of the cause or before the decree is made " absolute any person may give information to her " Majesty's proctor of any matter material to the due " decision of the case, who may thereupon tjfc such " steps as the Attorney-General may deem necessary collusion. « Qr expedient . and if from any such information or " otherwise the said proctor shall suspect that any " parties to the suit are or have been acting in col- " lusion for the purpose of obtaining a divorce con- " trary 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 wit- " nesses, and otherwise, arising from such interven- " tion, 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.'' Digitized by Microsoft® INTERVENTION. 251 The above is the only jurisdiction given to the Decree nisi. Court by statute : it seems therefore that there is no power for parties to a suit for dissolution of marriage to cite third persons, as might be done in suits within the jurisdiction inherited from the old Ecclesiastical Courts, as will be seen hereafter. Refer also to Eules, Nos. 23, 24, 1866. • The 23rd Rule directs that leave to intervene must Leave to be obtained from the judge on motion founded on affidavit. This it is conceived can scarcely apply to the case of a private person showing cause against a decree being made absolute which is not strictly inter- vening, and to which proceeding the statute certainly attaches no such condition precedent, as that of ob^ taining the leave of the Court. The next rule (Rule 24) seems, indeed, to infer that it relates to the intervention of the Queen's proctor, where leave is expressly directed to be obtained, and to those suits where the rules of Ecclesiastical Courts apply, as in such cases the party applying may join in the pro- ceedings. There are two kinds of intervention, one " by any two kinds of person," under the first branch of the section, the™ 6 "™ 111 ' r ' 1st. "Any second by the Queen's proctor under the latter branch, person." " During that period ;" these words, mean the period proctor, elapsing between the decrees nisi and absolute ; it is therefore competent for one of the public to inter- vene, although three months may have elapsed since the decree was pronounced (q), and the Queen's proc- tor as one of the public may do so (r). And where «Any per- an appearance had been entered by a friend of the vening? ter ~ co-respondent, against whom 5,000/. damages had been awarded, for the purpose of showing cause against a decree nisi being made absolute, on the ground that (q) Clements v.Clements and (r)Bowenv.Bowen and Evans, Thomas, 33 L. J., P. M. & A. 3 Sw. & Tr. 530. 74. Digitized by Microsoft® 252 INTERVENTION. " Any per- son" inter- vening. Intervener cannot be respondent or co-respon- dent. there were material facts in the case which were not brought to the notice of the Court ; and most of the material facts had been put on the record by the parties, and were not established at the trial, and the intervener had not established on affidavit a siDgle fact of importance : the Court declined to suspend its decree, and condemned the intervener in the costs occasioned by the intervention (s). And the Court will not act on affidavits filed in opposition to a decree nisi, unless it is satisfied that the intervener is properly before the Court ; for where an appearance was entered for A., and affidavits were filed in opposition to a decree nisi ; and affidavits were then filed by the petitioner showing that A. never authorized the intervention, and an appearance was then entered for B., and further affidavits were filed : the Court refused to take notice of the intervention of B., and being satisfied that A. had never authorized the intervention in his name, made the decree abso- lute (t). But though the statute directs that " any person" may show cause, this does not apply to a re- spondent agaiust whom a decree nisi has been pro- nounced, but he should apply, if material facts come to his knowledge after such decree, for a new trial (u). It is questionable whether the Court can dismiss a petition for dissolution of marriage after a decree nisi has been pronounced, except at the instance of the Queen's proctor, or of a third person. At all events it appears that the Court will not act on an inter- vention, when satisfied that it is made at the instance of the respondent or co-respondent (t>). And where, after a decree at the suit of the wife, she renewed (s) Forsler v. Forster and Berridge, 3 Sw. & Tr. 151. ( t) Clements v. Clements and Thomas, 33 L. J., P. M. & A. 74. («) Stoale v. Stoate, 30 L. J., P. M. & A. 173. (u) Clements v. Clements and Thomas, 33 L. J., P. M. & A. 74. Digitized by Microsoft® INTERVENTION. 253 marital intercourse with her husband, and informed May not be respondent or her attorney that she did not wish any further steps eo-respond- to be taken in the suit ; upon the application of the husband to dismiss the petition the Court declined to accede to it, but said that if both parties consented, it would order all proceedings in the suit to be stayed (x). Quaere, such renewed intercourse is law- ful or illicit ? There are two courses open to the Queen's proctor : Queen's he can either intervene under the latter branch of the section, by leave of the Court, and then under the 68th rule, he must take a part in the pleadings ; or he may show cause (after the decree nisi) as one of the public : Then the questions raised on such affidavits shall be argued at such time as the judge may appoint, or may be tried by a jury (y). When the affidavits filed by a person showing cause against a decree being made absolute, and the affidavits in answer, raise issues not proper to be decided on affi- davits, the Court will order the issues to be tried by a jury ; they cannot be tried by the Court itself on oral evidence (z). The Court will under the above section give leave Leave to in- . . p tervene with- for the Queens proctor to intervene in a suit tor out affidavit, dissolution of marriage, upon the statement of counsel without affidavit, that the Attorney-General has di- rected the Queen's proctor to apply for such leave, but will not order the hearing of the petition to be postponed, in order that he may plead to the petition, unless an affidavit showing grounds for such postponement be filed (a). But he cannot, with- out leave of the Court, intervene in his official capacity to show cause against a rule nisi for dissolution of (x) Lewis v. Lewis, 30 L. J., J., P. M. & A. 7. See also P. M. & A. 199. Harding v. Harding, 34 L. J., ( y) Boulton v. Boulton, 31 P. M. & A. 9. L. J., P. M. & A. 76. (a) Anon., 30 L. J., P. M. & (z) Masters v. Masters, Si L. A. 88. Digitized by Microsoft® 254 INTERVENTION. Queen's proctor. Judgment against peti- tioner by default. marriage being made absolute (c) ; and he is on the same footing with all the other suitors of the Court (d). Where he intervenes in a suit for dissolution of mar- riage before the hearing, and pleads collusion, and that the petitioner has been guilty of adultery, his right to intervene cannot be defeated by the petitioner asking only for a decree of judicial separation ; but he will be allowed to prove his pleas : Nor will the Court allow the petitioner to alter his prayer into a prayer for judicial separation, for the purpose of ousting the Queen's proctor (e), nor to withdraw his petition (f). Where the Queen's proctor intervened in a suit for dissolution of marriage and pleaded, charging the petitioner with adultery and collusion ; the petitioner traversed both charges, but, before the issues were tried, moved the Court to dismiss the pe- tition, the Queen's proctor not consenting : the Court rejected the motion on -the ground that the Queen's proctor would be entitled to his costs, if he esta- blished collusion (g). And when the Queen's proctor alleges matter which would be ground for reversing a decree nisi, and such allegations are admitted by the petitioner by his replication, the Court will act on these admissions, without requiring proof of the facts ad- mitted (h). The Queen's proctor intervened in a suit for dissolution, and alleged collusion and the peti- tioner's adultery ; the respondent did not appear : no evidence being tendered in support of the petition when the case came on for hearing, the Court dis- missed the petition, without requiring evidence to be produced in support of the Queen's proctor's pleas (i). If, before the decree nisi is made absolute, material (c) Gray v. Gray, 30 L. J., P. M. & A. 9S. {d) Gray v. Gray, 31 L. J., P. M. & A. 83. (e) Drummond v. Drummond, 30 L. J., P. M. & A. 177. (/) Gray v. Gray, 30 L. J., P. M. & A. 119. (g) Joyce v. Joyce, 33 L. J., P. M. & A. 200. (h) Boulton v. Boulton, 31 L. J., P. M. & A. 115. (i) Sheldon V. Sheldon, 34 L. J., P. M. & A. 80. Digitized by Microsoft® . INTERVENTION. 255 facts which would iustifv the intervention of the Queen's J J proctor. Queen's proctor come to the knowledge of the Court, it will refuse to make the decree absolute, and will ^^"Iso- direct the Registrar to lay the matter before the lute - Queen's proctor, that he may intervene if he think fit (j). The Queen's proctor, after a decree nisi had been pronounced, by leave of the Court, intervened, and pleaded a charge of adultery against the petitioner, subsequent to the adultery upon which the petition was founded : evidence of that charge having been given, No costs to , •-, _. . . . . Queen'sproc- tne Court dismissed the petition, and condemned the tor, unless . collusion petitioner in the costs of the intervention (k) — reversed proved, as to the costs by the H. of L., 33 L. J., P. M. & A. 89. The objection does not appear to have been taken here that when the Queen's proctor intervenes, and pleads under the latter branch of the section, he can only do so, if he " suspect that any parties to the suit are or have been acting in collusion," and can only " allege such case of collusion." In this case, though collusion was alleged, he also alleged adultery against the peti- tioner, and the decision proceeded on that ground. It is, however, from the report, dubious on which branch of the section the Queen's proctor proceeded. An in- tervener (the Queen's proctor) showing cause against a decree being made absolute, and alleging the same facts as those charged in the respondent's answer, and also collusion, is not bound to prove collusion before giving evidence of such facts (I). But the Queen's proctor can only intervene in his official capacity, in a suit for dissolution of marriage, when he alleges col- lusion : he may, however, as one of the public, show cause against a decree nisi being made absolute (m). Under the 20 & 21 Vict. c. 85, s. 43, the Court has only power to order the petitioner to attend the hearing. {j) Boulton V. Boulton, 31 (I) Harding v. Harding and L. J., P. M. & A. 27. Lance, 34 L. J., P. M. & A. 108. (ft) Lautour v. Lautour, 31 (m) Masters v. Masters, 34 L. J., P. M. & A. 66. L. J., P. M. & A. 7. Digitized by Microsoft® 256 INTERVENTION. Making de- cree abso- Attendance It cannot, therefore, order his attendance at the hear- of peti- tioner, ing of the case of the Queen's proctor, if the inter- vention was after a decree nisi had been pronounced : Semble, however, though the Court has no such power, it may stay proceedings in the suit until he ap- pears (pi) (per Cress well, J. 0.) However, in the same suit on an order subsequently made by the Judge Ordinary (Sir J. P. Wilde) that the petitioner should attend in Court at the hearing of the issue, and upon his non-appearance when the cause came on for hearing, the Court (Sir J. P. Wilde), re- versed the decree, and dismissed the petition, without requiring evidence in support of the plea (n). "Not less than three months." (This period is now extended to six, months by 29 Vict. c. 32, s. 3, see Appendix I.). — The months are calendar months, see 13 & 14 Vict. c. 21, s. 4. The Court refused to make absolute a decree nisi, pronounced on the 30th January, upon an affidavit that, on the 30th The search, of the ensuing April, search had been made in the registry, and that no appearance had been entered in opposition to the decree, the search having been made a day too soon (o). The affidavit upon which the motion is founded should show that search had been made in the registry at a recent date. The Court refused to make a decree absolute on the 4th November, upon an affidavit of search on the 1st October (p). Upon the motion, a copy of the decree nisi used to be filed with the affidavits (q). The practice, however, is now altered, and this copy need not now be filed with the papers for motion on making the decree absolute. It appears from the language of the Court in Wat- (m) Pollack v. Pollack, 32 L. J., P. M. & A. 28. (n). Pollack v. Pollack and M'Namara, 34 L. J., P. M. & A. 49. (o) Serrill v. Serrill, 31 L. J., P. M. & A. 114. (p) Stone v. Stone, 32 L. J., P. M. & A. 7; 3 Sw. & Tr. 113. (q) Fowler v. Fowler, 31 L. J., P. M. & A. 31. Digitized by Microsoft® INTERVENTION. 257 ton v. Watton and Oastler (r), and the other cases Mating de- ^ '' creeabsolute. argued with it, that there is no right to have a decree made absolute at the end of three months. An application to make absolute a decree nisi should be supported by affidavits of search and non- appearance, and, if an appearance has been entered, that no affidavits in opposition to the decree have been filed (*). See form of affidavit for motion to make absolute a decree nisi, Appendix IV. The Court, however, will refuse to make a decree nisi absolute, after the expiration of three months from the time when it was pronounced, in order to enable the Queen's proctor to make inquiries, and to lay a case before the Attorney-General for his direc- tions, upon an affidavit being filed by the Queen's proctor to the effect that he has received information of material facts, and that he intends to take the direction of the Attorney-General (t). Another kind of intervention arises under the 20 & intervention in custody of 21 Vict. c. 85, s. 35, and the 22 & 23 Vict. c. 61. s. 4 ; children. 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 chil- dren of parents, whose marriage is the subject of the suit (u). The extinct courts used to allow third parties to be intervention under the cited, where they were interested in the validity of a ancient * ' jurisdiction. marriage disputed in the suit. For in a cause of di- vorce, where the alleged marriage is denied to be valid, the Court may, probably, permit third parties, who have estates expectant inter alia, upon the issue of such alleged marriage being illegitimate, and who, (r) 35 L. J., P. M. & A. 95. (u) Chetwynd v. Chetwynd, (s) Boddyv. Boddy, 30 L. J. , 34 L. J., P. M. & A. 130. See P. M. & A. 95. also Chetwynd v. Chetwynd, 35 (*) Palmer v. Palmer, 34 L. L. J., P. M. & A. 21. J., P. M. & A. 110. Digitized by Microsoft® 258 NEW T&IAL. consequently, are interested in the question of its va- lidity, to be cited to see proceedings in the cause, so far as relates to the marriage (x). NEW TBIAL. See 20 & 21 Vict. c. 85, ss. 9, 10, and 21 & 22 Vict. c. 108, s. 18, repealed and amended by 23 & 24 Vict. c. 144, s. 1 ; and Rule 62 (1866). Principles. ^ u granting new trials in matrimonial suits the Court will be guided by the same principles as obtain in the Courts of Common Law. As to what these principles are, when the ground is that the verdict is . against evidence, see Allaway v. Bennett (y). It is against evi- no t a sufficient ground for setting aside the verdict of a jury, as against the weight of the evidence, that the judge, before whom the cause was tried, would have found a different verdict ; and, unless the judge is dissatisfied with the verdict, and there is reason for believing that, but for impatience, prejudice or mis- apprehension on the part of the jury, the verdict would not have been given, a new trial will not be granted. A new trial will not be granted on the ground that further evidence could be laid before the jury on a second trial, if such evidence could, by the exercise of reasonable diligence, have been obtained Must be error on * ne ^ Ts ^ ( z )- -N° r w ^ tne Court grant a new trial riage. scar merely because it arrives at an opposite conclusion upon the evidence to that at which the jury has ar- rived. If it is not satisfied with tolerable certainty that there has been error or miscarriage, it is bound to accept the verdict as correct (a) : nor will it be granted upon affidavits, which do not show surprise, (x) Montague V.Montague, 2 (x) Miller v. Miller, 31 L. J., Add. 372. See also Chichester P. M. & A. 73. v. Donegal, 1 Add. 5. (a) Scott v. Scott, 12 W. R. (y) 6 Jur., N. S., Exch. 347. 216. Digitized by Microsoft® NEW TRIAL. 259 but merely state that during the trial, and after the surprise. close of the applicant's case, material evidence had come to his knowledge (b). Nor is it a ground for a new trial, that the judge in his summing up, did not give as much weight to some parts of the evidence as they might have deserved (c). But where a verdict finding that the respondent in Against the a suit for dissolution of marriage had been guilty of evidence. adultery is against the weight of evidence, a new trial may be granted, although the judge who tried the cause is not dissatisfied with the verdict. In a suit by a husband for dissolution of marriage, claim- ing damages, the respondent denied the adultery, and the co-respondent, who had not been personally served, did not appear ; the jury found that the respondent had committed adultery with the co-respondent, and assessed the damages against the latter at 2,000/. : The respondent having applied for a new trial, on the ground that the verdict was against the weight of evidence, the Judge Ordinary (Sir C. Cresswell), who tried the cause, refused a rule : On appeal, his deci- sion was reversed by a majority of the full Court, who set aside the verdict as against the respondent and the co-respondent, and made a rule absolute for a new trial as to both : Subsequently the co-respondent, who was resident in Canada, and who had not heard of the institution of the suit until just before the trial, when it was too late for him to come to England, applied for leave to appear and file an answer : The Judge Ordinary (Sir J. P. Wilde) granted the applica- tion, on condition that, before trial, he should give security for costs, and on non-compliance with condi- tion ordered the appearance and answer to be taken off the file (d). See also Fitzgerald v. Fitzgerald, (b) Scott v. Scott, 33 L. J., (d) Stone v. Stone and Ap- P. M. & A. 1. pleton, 34 L. J., P. M. & A. (c) Codrington v. CodringtOn, 33. 34 L. J., P. M. & A. 60. Digitized by Microsoft® 260 NEW TEIAL. court dis. 3 Sw. & T. 400, and Cartledqe v. Cartledge, ibid. 406, satisfied with verdict. as to the course to be pursued when the Court is dis- satisfied with some of the issues. If the facts ascertained by the verdict are sufficient for the Court to found a decree on, the function of the jury is discharged. As where a husband petitioned for a dissolution of marriage and prayed damages, the co-respondent traversed the adultery, and charged the husband generally with cruelty to his wife : the jury found a verdict for the petitioner on the issue of adul- tery, and assessed the damages at 2,500Z. i and on stating that they could not agree on the issue of cruelty, were discharged by the Judge Ordinary : on motion for a new trial, the Court held that it had rightly discharged the jury from giving a verdict on the issue of cruelty, as it was ultimately a question for the opinion of the Court, under the 31st section of the Divorce Act (e). * Nor is an inconsistent verdict necessarily a ground for a new trial; unless it prevents the Court from ascertaining the substantial opinion of the jury (/*). Mistake. In a suit by a wife for judicial separation on the ground of cruelty, the respondent denied the cruelty, but before the trial signed a written consent to the decree being pronounced, upon the erroneous state- ment of his solicitor, that, upon the production of such consent at the trial, no evidence of the charges in the petition would be given : At the trial counsel ap- peared for the respondent, but called no witnesses : In support of the charges in the petition, witnesses were examined and the written consent was put in evidence, and a verdict was found for the petitioner : It was held by the full Court, affirming the decision of the Judge Ordinary, that it was no ground for granting a rule for a new trial, that the respondent («) Narracott v. Narracott (/) Ellyatt v. Ellyatt and and Hesketh, 3 Sw. & Tr. 408. others, 3 Sw. & Tr. 503. Digitized by Microsoft® NEW TRIAL. 261 had, in consequence of his being misled by his soli- Mistake. citor, abstained from adducing evidence to contradict the charges in the petition, and that thereby his character had been injured (g). When a verdict has been found for the 'respondent, Dismissing r petition after the Court will not dismiss the petition until the time verdict. allowed by the rules for moving for a new trial has elapsed (h), but aliter, if all parties concur in the application (i) ; and where an issue has been tried at the assizes, the parties are not bound by the 35th Eule (Probate), which directs that an application for When issue a new trial must be made within ten days of the trial assizes. or on the first sitting of the Court, after the trial ; because there " might be no opportunity of moving this Court" (k). A motion to dismiss a petition after motion to'" a verdict against the petitioner should be supported by an affidavit, that no application for a new trial has been lodged in the registry (I). See form of case for such a motion, Appendix IV. If a verdict has been found against two co-respondents in a suit for disso- lution of marriage, and the Court afterwards, on the application of one of them, grants a new trial, on the ground that the verdict against him was contrary to the weight of the evidence, there must be a new trial as to both, and, pending that application, the petitioner is not entitled to a decree absolute against the other ■ Semble, that if the petitioner consented to a verdict being entered for the co-respondent, who applied for a new trial, he would be entitled to a decree (m). It is no ground for suspending the decree nisi, after Effect of ap- ° . . plication for a verdict for the petitioner in a suit for dissolution of new triaI - (g) Bill v. Bill, 31 L. J., P. (*) Charlton v. Bindmarch, M. & A. 193. 29 L. J., P. M. & A. 163. (ft) Bitchcock v. Bitchcock, 30 {I) Bill v. Bill, 30 L. J., P. L. J., P. M. & A. 198. M. & A. 198. (») Seddon v. Seddon and (m) Walker v. Walker, 31 L. Doyle,3l L. J., P. M. & A. 31. J., P. M. & A. 2H. Digitized by Microsoft® 262 DECREE ABSOLUTE. marriage, that the respondent has given notice of an application for a new trial (n). Costs. Where the husband, petitioner, has had a verdict found against him, he must pay the costs of the first trial before a rule for a new trial will be made absolute (o). But where upon the application of the wife, who was respondent, a new trial is granted, the Court will not impose upon her the terms of payment of costs, if she has no means, but the husband must pay the costs of both parties (j>). Postpone- The hearing of a motion for a new trial upon affi- davits, if formally made in time, will be postponed when there has not been sufficient time to procure the necessary affidavits (q). ment. DECREE ABSOLUTE. Effect of. A. decree absolute does not seem to be conclusive against strangers, nor to be a judgment in rem. Gail. Obs. 112 (r). Re-maniage. As the decree absolute may be appealed from as well as the decree nisi (s), and as it is " a decision" of the Court, within 20 & 21 Vict. c. 85, ss. 55, 56, it seems clear that parties whose marriage has been dis- solved may not marry again until the period limited for appealing against the decree absolute has expired. APPEAL. See 20 & 21 Vict. c. 85, ss. 55, 56 ; 21 & 22 Vict, e. 108, s. 17 ; 23 & 24 Vict. c. 144, ss. 1, 2, 3. (n) Stone v. Stone, 32 L. J., (r) Duchess of Kingston's P. M. & A. 117. Case, 2 Smith's Lead. Cas.; (o) J ago v. Jago and Graham, Meddowcroft v. Huguenin, 3 3 Sw. &Tr. 103. Curt. 411. (p) Nicholson v. Nicholson (s) Lauiour v. £aufpwr(Q. P. and Ratcliff, 3 Sw. & T. 214. intervening), 83 L. J., P. M. & (q) Young v. Dendy, 36 L.J., A. 89. P. & M. 43. Digitized by Microsoft® APPEAL. 263 20 & 21 Vict. c. 85, ss. 55, 56— " Sect. 55. Either party dissatisfied with any de- Appeal from r J J the Judge " cision of the Court in any matter which, according h rd j. na , IJ ' ,0 " to the provisions aforesaid, may be made by the Court - " Judge Ordinary alone, may, within three calendar " months after the pronouncing thereof, appeal there- " from to the full Court, whose decision shall be final. " Sect. 56. Either party dissatisfied with the deci- ^House of " sion of the full Court on any petition for the disso- ^ r e ds j n " lution of a marriage may, within three months after aSSS^ionof " the pronouncing thereof, appeal therefrom to the a marm K e - " House of Lords if Parliament be then sitting, or if " Parliament be not sitting at the end of such three "months, then within fourteen days next after its " meeting ; 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 the Court, " to be dealt with in all respects as the House of " Lords shall direct." 21 & 22 Vict. c. 108— " Sect. 17. Whereas doubts may be entertained Appeal in " whether the right of appeal given by the act of the numty of " twentieth and twenty-first Victoria, chapter eighty- lie to the " five, section fifty-six, extends to sentences on pe- Lords. " titions for nullity of marriage ; be it enacted and " declared, that either party dissatisfied with any such " sentence may appeal therefrom in the same manner, " within the same time, and subject to the same regu- " lations as affect appeals against sentences on peti- " tions for the dissolution of marriage." 23 & 24 Vict. c. 144, ss. 1, 2 and 3, made perpetual by 25 & 26 Vict. c. 81— " Sect. 1. It shall be lawful for the Judge Ordinary The Judge " of the Court for Divorce and Matrimonial Causes m r a yex7rcise " alone to hear and determine all matters arising in ?eSin the " the said Court, and to exercise all powers and ful1 Collrt ' " authority whatever, which may now be heard and Digitized by Microsoft® 264 APPEAL. " determined and exercised respectively by the full " Court or by three or more Judges of the said Court, Judge ordi- " the Judge Ordinary being one, or where the Judge nary may call & J ° ' ° in the assist- " Ordinary shall deem it expedient, in relation to any ance of one of the other " matter which he might hear and determine alone by Judges. b J " virtue of this Act, to have the assistance of one " other Judge of the said Court, it shall be lawful for " the Judge Ordinary to sit and act with such one " other Judge accordingly, and, in conjunction with " such other Judge, to exercise all the jurisdiction, " powers and authority of the said Court. Judge may " Sect. 2. Provided always, that the Judge Ordi- matteAo be " nary may, where he shall deem it expedient, direct fun court. " that any such matter as aforesaid shall be heard and tm court. "" " determined by the full Court ; and in addition to " the cases in which an appeal to the full Court now " lies from the decision of the Judge Ordinary, either " party dissatisfied with the decision of such Judge " sitting alone in granting or refusing any application " for a new trial which by virtue of this act he is em- " powered to hear and determine may, within fourteen " days after the pronouncing thereof, appeal to the " full Court, whose decision shall be final. Appeal to " Sect. 3. Where there is a right of appeal to the Lords. " House of Lords from the decision of the full Court " there shall be the like right of appeal to the said " House from the decision of the Judge Ordinary " alone, or with any other Judge, under this act." An appeal only suspends the sentence appealed from, but does not render it a nullity (t). It is a judicial right, whereby the former sentence is for a while extinguished (u). The effect of an appeal is not to extinguish, but only to suspend a sentence ; and when the sentence is affirmed it is the sentence of the Court below, which (*) Blyth v. Blyth, 1 Add. 312. (u) Ayliffe's Par. 71. Digitized by Microsoft® APPEAL. 26.5 is to be carried into effect, not that of the Court of Kffect of. Appeal, which pronounces no sentence at all, except upon the appeal (x). The Court for Divorce will not suspend its proceed- ings during the pendency of an appeal improperly made to the House of Lords, instead of to the full Court, but will proceed to dispose of the petition on its merits (j/). Where a decree from the Court below, dismissing a petition for a declaration of nullity of marriage, is reversed on appeal by the House of Lords, the House should not only reverse the decree appealed from, but decree that the marriage was null and void ab initio (z). Appeal to the House of Lords. — From the above To the House rr J of Lords. sections it appears that appeals in suits for dissolution of marriage and nullity lie to the House of Lords, and in other cases to the full Courts. Where the Judge Ordinary exercises any of the functions which could only be exercised by the full Court before the passing of the 23 & 24 Vict. c. 144, the appeal lies to the House of Lords, and not to the full Court (a). In a suit for dissolution of marriage by reason of the adultery of the respondent and co-respondent, they answered that the marriage in question was illegal, by reason that the petitioner had, before he married the respondent, lived and cohabited with her sister: on demurrer it was held by the Judge Ordinary, that the circumstance alleged did not render the marriage in- valid ; the co-respondent thereupon at once appealed to the House of Lords from this decision: Held, that as the (x) Frankfort v. Frankfort, ward) v. Hayward, 35 L. J., P. 3 No. of Cas. 435. M. & A. 105. (y) Pagani v. Pagani and (a) Sidney v. Sidney, 1 L. E.., Vining, 35 L. J., P. M. & A. P.&D.78; 35 L. J.,P. M.& A. 87. 46 : affirmed on Appeal to H. (z)Lewis (falsely called Hay- oth., 36 L. J., P. & M. 73. B. N Digitized by Microsoft® 266 APPEAL. To the House decision on the demurrer was only on an interlocutory of Lords. matter, which might have been disposed of under the original Divorce Act, by the Judge Ordinary sitting alone, an appeal does not lie to the House of Lords, but to the full Court (6). An appeal lies equally against a decree on matter of fact as of law, but not rime for. on CO sts only (c). The time limited for appealing to the House of Lords is three months from the pro- nouncing of the decree, if Parliament be sitting at the time that such three months expires ; if Parliament be not then sitting, then within fourteen days after its next meeting (d). All persons, who were parties to the suit in which the decree appealed against was made, should be made parties, or cited to appear, in Practice. the appeal (e). Notice of appeal must be given to each of the respondents, see a Form of Notice, Ap- pendix IV. ; the order or orders complained of should be clearly stated in the notice. It must be certified on the appeal, that such notice has been given ; for Form of Certificate, see Appendix IV. A form of a petition of Appeal is also given, see Appendix IV. The appeal must be signed by two counsel (f). They must also sign a certificate that there is reasonable cause for the appeal (g); see Form of such Certificate, Appendix IV. But the object of their signature and ■certificate is rather to secure propriety in the form of the appeal, than to determine the reasonableness of the appeal (Ji). The appeal, together with a copy en- grossed on parchment, should then be lodged in the par- liament office, and will be duly presented. An order thereupon will be made requiring the respondent to answer. This order, see its form, Appendix IV., (6) Pagani v. Pagani and (p.) Macq. Pr. in the H. of Vining, 35 L.J., P. M. & A. L. 123. 87. (/) Standing Order, No. (c) 20 & 21 Vict. c. 85, s. 58.' 51. (g) Ibid. (d) Ibid. s. 56. (h) Amicable Society v. Bol- land, 2 Dow & Cla. 1. Digitized by Microsoft® APPEAL. 267 must be obtained by the solicitor to the petitioner, To the House and served as a writ of summons at common law, and an affidavit of service on the respondent in the appeal, should be endorsed on it. Within eight days after lodging the appeal, the appellant must enter into a recognizance ■ to the Crown, conditioned to pay all such costs to the respondents as the House may award (i). The appeal will be dismissed, if this re- cognizance be not completed in the eight days (k). The appeal may be amended, if a petition for amend- Amendment of appeal. ment be presented, but this must be done without delay ; two days' notice of the petition to amend should be given to the other side, and it may then be presented at the office, when the prayer of it will be decided by the appeal committee of the House. Ob- jections to the appeal on behalf of the respondent for informality should be taken by a counter-appeal, stating the grounds of objections, and praying that the appeal be dismissed. If, when the time for an- if T espond- swering has expired, the respondent has presented answer. neither a counter-appeal nor an answer, the appel- lant's solicitor may move for a peremptory order, that the respondent answer within a week. This order is granted as a matter of course. To obtain it, the appellant must produce the original order to an- swer, with the affidavit of service endorsed thereon, and give instructions to the clerk for the motion. If the respondent still neglect to answer, the appellant's solicitor should instruct the clerk that a motion be made to hear the appeal ex parte. It must be remem- bered that a party, failing to obey these orders to answer, is not guilty of contempt; such party will only be punished by being awarded no costs. If the respondent answer, the answer should be engrossed on parchment, and deposited in the same manner as the (i) Standing Order, 22 June, 1829. (*) Ibid. n2 Digitized by Microsoft® 268 APPEAL. To the House appeal, see Form of Answer, Appendix IV. Within of Lords. „ , „ four weeks from the time appointed for the respondent to put in his answer, the appellant must deposit at Printed case, the office his printed case. This is a statement of the question on which the House is to decide. The ap- pellant must deposit 100 copies of his case. The case should state the pleadings, the evidence (if there be any fact to be decided by the appeal), and the order signature of or decree appealed against. By the Standing Order, No. 58, it must be signed by " one or more counsel " who attended at the hearing below, or who shall " be of counsel at the hearing in the House" (J). The respondent also must deposit a printed case (100 copies) similarly signed by counsel. At the hearing of the appeal, no evidence is received which was not received in the Court below. Only two counsel are allowed to be heard for each party. As to the prac- tice of addressing the House, see Standing Order, 2nd March, 1727. The House have power to make any order as to costs it thinks fit (m) ; but if they make no order, the Court below cannot make any; and the decree of the House of Lords when verified by affidavit, may be recorded in the registry (ra). Time for. To the Full Court. — For other appeals, the time limited is either three months (o), or in cases where the appeal is from the Judge Ordinary granting or refusing an application for a new trial, fourteen days from the date of his decision (p); and the Court has no power to extend that time (fourteen days) as " the language of the act is imperative" (q). The rules applicable to the practice are 77, 78 and 79 (1866): Practice. and the procedure is, that the appellant must reduce into writing his appeal and file the same within (0 Macq. H. of L. Pr. 133. (o) 20 & 21 Vict. u. 85, s. (m) 20 & 21 Vict. u. 85, a. 55. 51. (p) 23 & 24 Vict. c. 144, =>. (n) L— (falsely called H— ) 2. v. H— , 36 L. J., P. & M. (q) Boulting v. Boulting, 33 ""). L. J., P. M. & A. 81. Digitized by Microsoft® APPEAL. 269 the time allowed by law for appealing, and on the Appeal to the J rr ° full Court. same day give a notice of the appeal and a copy of the instrument to each respondent (r). A form of instru- instru- v ment and ment of appeal is given in the Appendix IV. No. 11. notice. Within ten days after the filing of this instrument of appeal (or within such further time as may he allowed), the appellant must file in the Registry his case in support of the appeal, in triplicate, and on Appellant's case in mp- the same day deliver a copy thereof to each respond- port. ent in the appeal, or to their attorney, &c. (s). Within ten days from such filing of the case in Respondent's case arjainst. support and delivery of a copy by the appellant (or such further time as may be allowed), the respondent should file his case against the appeal, also in tripli- cate, and on the same day deliver a copy to the ap- pellant or his attorney, &c. (t). At the expiration often more days, the appeal stands Heating. for hearing at the next full Court, and will be called on in its turn (u). The facts will be taken to he those proved before the Court of first instance, and assumed to be those appearing on the notes of the Judge Ordinary : The appellant must show at the hearing that those facts did not warrant the decree appealed against (v). In an appeal from an interlocutory matter, not What must . . . . he shown. touching the mam issue in the cause, and resting in the judicial discretion of the Court below, the appel- lant must satisfy the Court of Appeal, that the discre- tion of the Court below was altogether wrongly exer- cised (x). When a question to determine the admissi- bility of evidence has been decided by a judge pre- siding at a trial by jury, the decision of the judge on such question maybe reviewed by a Court of Appeal: (r) Rule 77 (1866). P. & M. 8. (s) Rule 78 (1866). (x) Thompson v. Thompson (t) Ibid. and Sturmfels, 2 Sw. & Tr. («) Rule 79 (1866). 402. (d) Curtis v. Curtis, 28 L. J., Digitized by Microsoft® 270 COSTS. Right to Sed qumre (u). Upon such an appeal, where notice has been given to the other side, the question for the Court is, not whether a rule nisi should be granted, but whether such a rule should be made absolute or discharged (v). Upon an appeal against an order granting or refusing a rule nisi, it is the practice to read the notes of the trial before hearing counsel (x), and on the hearing of such an appeal, the appellant must begin (y). No appeal lies from any order of the Court as to costs only (z). Power to Court to order adul- terer to pay costs. Fee3 to be regulated. COSTS. See 20 & 21 Vict. c. 85, ss. 34, 51, 54 ; 21 & 22 Vict. c. 108, ss. 13, 14 ; 23 & 24 Vict. c. 144, s. 7. 20 & 21 Vict. c. 85— " Sect. 51. 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 : pro- " vided always, that there shall be no appeal on the " subject of costs only." " 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 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." " Sect. 54. The Court shall have full power to fix " and regulate from time to time the fees payable upon " all proceedings before it, all which fees shall be re- " ceived, paid and applied as herein directed : Pro- (u) Fitzgerald v. Fitzgerald (full Court), 3 Sw. & Tr. 400. (u) Yeatman v. Yeatman, 33 L.J., P. M. & A. 51; 3 Sw. & Tr. 361. (i) Ibid, (notis). (») Ibid. (s) 20 & 21 Vict. i>. 85, s. 51 ; Glennie v. Glennie and Bowles, 3 Sw. & Tr. 109. Digitized by Microsoft® costs. 271 " vided 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." 21 & 22 Vict. c. 108— " Sect. 13. The bill of any proctor, attorney or Bills of !••/>« . proctors, " solicitor, for any fees, charges or disbursements in attomies.&c. to be subject " respect of any business transacted in the Court for to taxation. " Divorce and Matrimonial Causes, and whether 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 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. " Sect. 14. The Judge Ordinary of the Court for Power to t. . . ™ . . enforce " Divorce and Matrimonial Causes, and the registrars decree as to costs. " of principal registry of the Court of Probate, shall " respectively, in any case where an Ecclesiastical " Court having matrimonial jurisdiction had, pre- " viously 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 en- " forcing 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 Digitized by Microsoft® 272 COSTS. The rules. Power of Ecclesiasti- cal Courts. Suspension. " in causes depending in any Ecclesiastical Court pre- " viously 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." The rules which affect the question and taxation of costs are Kules 151 to 157 (1866), both inclusive, which see. As to the scale of fees and costs, see Appendix III., and Copies of Bills of Costs there given. It seems that bills of costs between a proctor and his client being of common law cognizance the Eccle- siastical Courts had no jurisdiction over them, nor could it compel payment between a proctor and his client (a). But where a party regularly complained of gross extortion by his proctor, the Court might punish the proctor by suspension or otherwise (b). And where on complaint before the old Prerogative Court of Canterbury in a probate cause against a proc- tor, of an extortionate charge (88?. 4*. 4rf.), for taking out probate in common form, the bill was referred to the registrars, who reported the proper charge to be 521. 15s. 8d., the Court suspended the proctor for three months, and condemned him in costs, under cir- cumstances of mitigation (c). And where a bill of particulars for business done in the Court of Delegates had been recently delivered, though a general account had been rendered, settled and paid three years before, the Court, on petition, directed the bills to be examined by the registrar, in order, first, that the suitor might decide as to proceed- ing in other Courts to recover the excess (if any), secondly, to found a complaint against the proctor, if (a) Peddle v. Evans, 1 Hag. 685; Gifford's Case, 1 Salk. 333 ; Pollard v. Gerard, 1 Ld. Raym. 703 ; Johnson v. Lee, 5 Mod. 240. (b) Peddle v. Evans, supra. (c) In the goods of Lady Hat- ton Finch, 3 Hag. 255. Digitized by Microsoft® COSTS. 273 the charges were exorbitant or fraudulent : the regis- trar reported the bill to be just and reasonable, and costs against the petitioner were not given, only because he was almost a pauper (rf). Where the Court decrees a dissolution of marriage Wife's costs against at the suit of the wife, costs follow the decree as a husband. matter of course, if the Court, in pronouncing its decree, gives no directions as to costs (e). Where the wife is respondent, her costs will not be taxed against the husband after trial, when she has failed in her suit (_/") ; nor after a decree nisi at the petition of the husband, where the wife filed a petition for permanent alimony () Bird (alias Bell) v. Bird, (p) Hood v. Hood, 2 Sw. & 1 Lee, 209. Tr. 112, note. (s) Portsmouth v. Portsmouth, (j) Beevor v. Beevor, 3 Phill. 3 Add. 64. Digitized by Microsoft® 276 COSTS. Husband insolvent, Wife unsuc cessful. Wife's costs, until funds were provided by the committee of the hus- band to enable the wife to conduct her defence (<). But when the husband has no property the rule does not apply. For where the husband possessed no pro- perty whatever, having been shortly before discharged from prison as an insolvent debtor, although not pro- ceeding in forma pauperis, the Court refused to tax the costs of the wife against him (w). But if the wife has brought her case to a hearing and failed, the husband has never been made liable to her costs (v) ; the 159th Kule (1866) however, which directs that no costs of the wife inafclental to the 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, is not absolutely impera- tive upon the Court : but no application will be admitted subsequently, unless under very special and meritorious circumstances (x). But when such cir- cumstances are shown, the Court will, even after the lapse of three months from the date of the decree nisi, allow a wife her costs ( y). Nor was the husband made liable where the wife had a separate income (z). And in a suit for resti- tution of conjugal rights, the wife, having separate property of her own, is liable to pay her own costs (a), especially if her income be large in proportion to that of her husband (V). But not unless the separate in- come is sufficient both for her own support, and for (£) Smith v. Morris, Arches, 1818 (quoted, 3 Add. 67). (u) Walker v. Walker, 1 Curt. 564. (u) Keats v. Keats and Mon- tezuma, 1 Sw. & Tr. 358. (.r) Conradi v. Conradi and Flashman, 35 L. J., P. M. & A. 49. (y) Somer title v. Somerville, 36 L. J., P. & M. 87. (s) Robinson v. Robinson, 1 Sw. & Tr. 400 ; Greg v. Greg, 2 Add. 285, note. (a) Holmes v. Holmes, 2 Lee, 90; Turst ». Turst, ibid. 92 (notis). ( b) Fyler v. Fyler, 1 Dea. & Sw. 175. Digitized by Microsoft® COSTS. 277 the payment of her costs (c)/ And where she is wife's costs, unsuccessful in her suit for judicial separation, she is not entitled to her costs of the hearing, although security for such costs has been given, if she is pos- sessed of sufficient property to defray her own costs (d). It also follows that the rule is only applicable against Third the husband, and does not apply as against third parties : For in a suit of nullity instituted by the father of the husband in his own right against the husband and wife, the wife is not entitled to have her costs de die in diem taxed against the petitioner (e). Where the Court directed the application of an in- terest taken by the husband in the income of the wife's money under settlement, in favour of the wife or child, the Court would not make any order as to costs of the application, as the wife had the whole income (/"). Nor is there any inflexible rule that a Costs against wife, even when the complaining party, is never fixed with the costs of the suit : 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 to the time of the motion ( a). " The costs of such interlocutory mo- interlocutory s . motions. tions (i. e. a successful motion by a husband to strike out a plea to the jurisdiction pleaded by the wife) " if the wife is unsuccessful, are not taxed against the husband" (Ji). And in a suit of nullity instituted by the father of the pretended husband in his own right, the alleged wife has no right to an order for the payment of her costs by the petitioner before the hearing (i). And the general rule that in (c) Belclier v. Belcher, 1 Curt. (g) Lewis v. Lewis, 29 L. 444. J., P. M. & A. 123. (d) Heal v. Heal, 36 L. J., (h) Forster v. Forster and P. & M. 62. Berridge, 3 Sw. & Tr. 151. (c) Wells v. Wells and Cot- (i) Wells v. Cottam, 12 W. tarn, 34 L. J., P. M. & A. 12. R. 672 j 33 L. J., P. M. & A. (/) Boynton V. Boynlon, 2 72. Sw. & Tr. 275. Digitized by Microsoft® 278 COSTS. Costs against guardian. wife's costs. a matrimonial suit the husband is liable for the wife's costs, does not apply to a suit of nullity of marriage, where the de facto husband and wife are both made respondents and the marriage is declared null : where however in such a suit, the wife's costs may be considered to be consequent on the husband's con- duct (e. g. if by his importunity she was induced to contract an invalid marriage) the Court may under the 51st section of 20 & 21 Vict. c. 85, order them to be paid by the de facto husband, provided there was reasonable ground for her defending the suit, but not otherwise (J). But where the husband is an infant she is entitled to have her costs taxed against his guardian {k). A guardian in instituting or carrying on a matri- monial suit on behalf of a minor wife against her hus- band, must exercise sound judgment and discretion, if he carry on such suit without a just foundation, he will be condemned in the costs of the husband ; and under no circumstances can a wife in a matrimonial suit be condemned in costs (J). Where in a suit for nullity by a next of kin on the ground of the woman's insanity at the time of the marriage, the petitioner delayed three years in insti- tuting 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 (m). Where the husband had paid a sum into the registry to meet the wife's costs of hearing and had died before the cause came to hearing, the Court made an order for the taxation of the costs incurred for the hearing by the wife's solicitors, and for payment to them of such costs out of the fund in the registry, with leave Petition by next of kin. When huS' band dead (j) Weill v. Cottam (falsely called Wells) and Wells, 34 L. J., P. M. & A. 12. (£) Beavan v. Bcavan, 2 Sw. & Tr. 652. (I) Brown v. Brown, 2 Ro- bert 302. (m) Hancock v. Peaty, 36 L. J., P. & M. 57. Digitized by Microsoft® costs. 279 to the solicitors of the husband's executors to attend wife's costs. the taxation (n). Where the wife had petitioned against the husband, when wife and the proceedings are ended before hearing, by her habitation. return to cohabitation, the petition will be dismissed on the husband's application, only on the payment of her taxed costs (o). But the Court will make an order for the taxation and payment of the wife's costs in a matrimonial suit against the husband, notwithstanding his apparent inability to pay them, though it appears it will not grant an attachment for disobedience to such an order, if satisfied of the husband's inability through poverty to comply with it(p). Where the wife when wife succeeds in establishing a legal defence to her hus- adultery, band's petition she will be entitled to costs, though she be found guilty of adultery, and no order on the husband has been obtained to pay money into the registry to meet her costs of trial (q). But where there were cross suits, and the marriage was dissolved on the ground of the wife's adultery, the Court held that the husband was not liable for the costs of the wife's petition, inasmuch as she had not taken the ordinary steps to get them taxed previous to the final determination that she had been guilty of adultery, but the decree pronouncing her to be guilty of adultery should be pleaded to entitle the Court to take notice of it (r). Where a wife obtained a decree nisi against her husband for dissolution of marriage, and before the decree was made absolute, the Queen's proctor inter- vened and proved that she had committed adultery (n) Hall v. Hall, 3 Sw. & Tr. Tr. 484. 390. (?) Ellyatt v. Ellyatt and \o) Cooper v. Cooper, 3 Sw. others, 3 Sw. & Tr. 503. & Tr. 392 ; and 33 L. J., P. (r) Rolt v. Rolt, 3 Sw. & Tr. M. & A. 71. 604; 34 L. J., P. M. & A. 51. p) Ward v. Ward, 1 Sw. & Digitized by Microsoft® 280 COSTS. When co- respondent condemned Wife's costs, while the suit was pending, and the decree was there- upon rescinded ; it was held that she was entitled to enforce the payment by the respondent, of all costs, which had been taxed and ordered to be paid, up to the date when she was found guilty of adultery including the costs of the hearing, although they had not been taxed («). The money paid into Court by a husband petitioning for dissolution of marriage, to meet his wife's costs of hearing, is primarily liable to the payment of those costs when taxed, although the co-respondent may have been condemned in all the costs, including those of the wife, and the husband may be unable to ob- tain them from him (t). Care must be taken that the sum paid in be sufficient, for where the Eegistrar has directed a sum of money to be paid into Court to meet the expenses of the wife's petition at the hearing, and her suit fails, the husband will not be liable to a greater amount than the sum so paid in, though the wife's costs as ascertained on taxation exceed that sum (u). And where in a suit for dissolution of mar- riage, the wife, before the hearing, obtained the usual order for the taxation of costs : the Eegistrar made an appointment, and found that her taxed costs up to the date of the order amounted to 91. lis. 6d., and that 90Z. would be a reasonable sum to be paid into the registry to cover the wife's costs of the hearing, Registrar's but he declined to make his report to that effect, as made in time, the petitioner's solicitor was not present, and he made a second appointment ; in the interim the cause was heard and the wife failed in the suit ; it was held she was not entitled to the costs incurred before the date of the order, nor to the costs of the hearing (x). But (s) Whilmore v. Whitmore, 1 L. R., P. & D. 96 ; 35 L. J., P. M. & A. 52. (*) Evans v. Evans and Ro- binson, 28 L. J., P. & M. 137. («) Sopwith v. Sopwith, 2 Sw. & Tr. 105 ; Glennie v. Glennie and Bowles, 3 Sw. & Tr. 109. (x) Gough v. Gough and Baynton, 33 L. J., P. M. & A. 136. Digitized by Microsoft® COSTS. 281 if the husband's petition be dismissed, and the wife's wife's costs, costs of the hearing exceed the sum secured or paid JJjj* ™" into the registry to meet them, the husband is liable to pay the balance, but the application should be made on summons, and not on motion (y). And where a wife has obtained a decree nisi, she is entitled to an order for the payment of her surplus costs of the hear- ing beyond the amount paid into Court, notwithstand- ing that a motion for a new trial and a bill of excep- tions are pending (z) ; see also Burroughs v. Bur- roughs, 31 L. J., P. M. & A. 124. Where a wife petitioned for judicial separation on the ground of cruelty and adultery ; the respondent traversed the charges, and afterwards obtained leave to amend his answer by adding a counter-charge of adultery ; before leave to amend was granted and after an order for the payment of the wife's taxed costs, the respondent became bankrupt on his own petition : An application to rescind the order for the amendment of the answer, on the ground that the respondent had become bankrupt solely for the purpose of avoiding payment of his wife's costs, and that the order was made by the Court in ignorance of the bankruptcy, was rejected (a). Costs of wife in a matrimonial suit are taxed as Principles 1 . oftaxation. between party and party, but not in ail respects on the same principles as a taxation at common law between party and party. Thus, though certain issues may have been found against the wife, whose costs are being taxed, the expenses incurred by them will issues found be allowed unless the Registrar should think that they were wantonly and vexatiously raised (b). At the hearing of a wife's petition for a dissolution Wife impro- perly a wit- ness. (y) Cooke V.Cooke and Allen, (a) Greatorex v. Greatorex, 3 Sw. & Tr. 603 ; 34 L. J., 34 L. J., P. M. & A. 9. P. M. & A. 15. (b) Wells v. Wells, 1 Sw. & (s) Chetwynd v. Chetwynd, Tr. 308. 34 L. J., P. M. & A. 65. Digitized by Microsoft® 282 COSTS. Unfounded defence. Principles of f marriage, it was proved that the husband had com- taxation. & ' r mitted adultery, that such adultery had been con- doned, but that the right of the wife to complain was revived by subsequent cruelty : After the verdict was given, the wife elected to take a decree for judicial separation only, which was made with costs generally against the husband : the wife was the only witness produced to prove the charge of cruelty : The Court refused to order the Registrar to review his taxation of costs, by disallowing all his charges therein as to the proof of adultery, but ordered that any costs con- sequent upon the wife's evidence, which would not have been admitted if she had prayed in the first instance for a judicial separation, should be struck out (b). The costs of an unfounded defence are disallowed ; for where a wife in her answer to a petition for disso- lution, traversed the adultery charged and brought several counter-charges against the petitioner, which appeared at the hearing to be entirely without founda- tion, the Court made the following order as to her costs of hearing : her costs to be taxed as if she had only traversed the adultery and had gone to trial on that issue alone, all costs of and occasioned by the rest of her answer being disallowed ; from her costs thus taxed any costs to be deducted which the petitioner had reasonably incurred for the purpose of meeting the charges made against him in the answer ; and the residue, if any, to be paid to the respondent out of the sum deposited in the registry by the petitioner to meet her costs of the hearing (c). And where in a suit by a wife for judicial separa- tion, the Judge Ordinary having reason to believe that it had been instituted not for the purpose of obtaining Suit insti- tuted alio intuitu. (i) Dent v. Dent, 35 L. J., P. M. & A. 61. (c) Clark v. Clark, Perren, and Cummins, 34 L. J., P. M. & A. 71. Digitized by Microsoft® costs. 283 a decree, but for the purpose of obtaining costs from Principles of taxation. the husband, and being satisfied by affidavits that the petitioner was a drunken and profligate woman, and that she had for many years been living in open adul- tery, directed that her taxed costs incurred prior to the hearing, should be deposited in the registry until further order, instead of being paid over to her at- torney (d). Expense of witnesses to prove the circumstances of a plea not in issue, if such circumstances have a bear- witnesses to , n . . a plea not in mg on other parts ot the case in issue, may be allowed ; issue. and a reasonable amount of expense incurred in in- vestigating and acquiring information as to the cir- cumstances of the case, should be allowed (e). But on taxation of a wife's costs in a petition for judicial separation against a husband, pending the suit, the Court confirmed the Registrar's taxation disallowing all costs incurred before actual proceedings taken against the husband, and various items charged for attendance on the wife's father in connection with the case (/). " It would be quite contrary to the practice of the Ecclesiastical Courts to allow for attendances on any one, except the party herself" (per Judge Or- dinary) (g). The general principles of taxing costs against a husband in matrimonial cases, are the same as in other causes. The rule of the Ecclesiastical Two counsel. Courts not to allow more than two counsel on taxa- tion, is not applicable where the evidence is oral in open court. Where a London attorney conducts the when Lon- r don attorney suit, no expenses of a local attorney will be allowed employed. on taxation, against the husband {h). The costs of an Unsuccessful application by a wife for time to plead will not be wife, allowed, unless the application was rendered necessary (d) Rogers v. Rogers, 34 L. (/) Dickens v. Dickens, 2 Sw. J., P. M. & A. 87. & Tr. 103. (e) Allen v. Allen and Darcy, (g) Ibid. 2 Sw. & Tr. 107. (A) Suggate v. Suggate, 1 Sw. & Tr. 497. Digitized by Microsoft® 284 COSTS. Wife's costs, by the default of the husband ; where a wife obtained an order for the attendance of the husband on the hearing of her petition for alimony, for the purpose of being examined thereon, and the husband was ex- amined accordingly, but his evidence satisfied the Court of the truth of his answer, the costs of the motion for the order were disallowed (i). Similarly, the costs of an unsuccessful motion by a wife for access to the children of the marriage, and of an un- successful opposition by her to a motion for further particulars of the charges made by her in her petition, costs of wife should not be allowed (k). In a suit for dissolution after decree. of marriage on the ground of the wife's adultery, the respondent and co-respondent denied the charge, and the respondent further charged the petitioner with adultery ; it appeared at the hearing that this latter charge was substantially the joint defence of the respondent and the co-respondent : A jury found that the respondent and co-respondent had not been guilty of adultery, and also that the petitioner had not been guilty of adultery : Held, the respondent was entitled to the whole of her costs in supporting the first issue, although they should exceed the sum deposited in the registry, but that as to the second, she was entitled only to a moiety of the costs incurred (Z). Where a New trial, new trial is granted on the application of the wife, the Court cannot impose upon her the terms of pay- ment of costs, if she has no means, but the husband must pay the costs of both parties (m). If the wife sue in forma pauperis she will be allowed costs («). But her costs of appeal will not, as a matter of course, be taxed against her husband (o). Nor where she, Forma pau- peris. Appeal. (0 Harding v. Harding, 31 L. J., P. M. & A. 76; 2 Sw. & Tr. 549. (k) Hepworth v. Hepworth, 30 L. J., P. M. & A. 253. (/) Burroughs v. Burroughs, 31 L. J., P. M. & A. 124. (m) Nicholson v. Nicholson, 32 L. J., P. M. & A. 127. (n) Afford v. Afford, 30 L. J., P. M. & A. 174. (o) Thompson v. Thompson and Sturm/els, 2 Sw. & Tr.404. Digitized by Microsoft® COSTS. 285 being respondent, moves for leave to show cause wife's costs. against a decree nisi being made absolute (p). So, where she applies to have the cause tried by a special special jury. jury, the Court may, in its discretion, refuse her the costs of the special jury (q). There is, on the other hand, no objection in prin- Payment of ' J r husband's ciple to condemning the wife to pay the husband's costs by costs, especially if she, by her improper counter- charges, increase them ; but the Court will not con- demn her, if by so doing it deprive her of the means of subsistence (r). Or where a marriage was annulled by reason of affinity, at the suit of the wife, both parties knowing at the time of the celebration of the marriage of the illegality of it, and being very much in pari delicto, no costs were given to either side (s). The rule as to an attorney's lien are similar to those Attorney's of the common law courts ; for where an attorney has acted on the part of a wife in a matrimonial suit, and has a claim for costs therein incurred beyond those which have been taxed against the husband, he has a lien upon the alimony paid into his hands on her be- half for such extra costs (<). The Court may order the costs of the proceedings costs against i i ill . co-respon- to be paid by the co-respondent, where the adultery is dent ; established, although the petitioner may not have " n ot p raye" de(l prayed for such costs (u). Where costs against the co-respondent to a petition for dissolution of marriage, on the ground of the wife's adultery, are applied for, evidence should be given of the circumstances under which the adulterous con- nection was formed j and where no such evidence is When liable, given, and it does not appear that the co-respondent, (p) Stoate v. Stoate, 2 Sw. & (s) Aughtie v. Aughtie, 1 Tr. 384. Phill. 201. (q) Scott v. Scott, 32 L. J., (t) Bremner v. Bremner, 36 P. M. & A. 40; Taylor V. Tay- L. J., P. & M. 11. lor, 9 h. T., N. S. 24. (u) Finlay v. f 'inlay, 30 L. (r) Carstairs v. Caratairs, 33 J., P. M. & A. 104. L. J., P. M.& A. 170. Digitized by Microsoft® 286 costs 1 . costs against at the time the adulterous connection was formed, dent. ™ knew that the respondent was a married woman, he will not be condemned in costs (x). Where a petitioner claimed damages from a co- respondent, and evidence was produced by the co- respondent showing that the respondent was leading an abandoned life when he made her acquaintance ; it was held the co-respondent ought not to be con- demned in costs, as the claim for damages was im- proper (y). Where the wife's conduct has been profligate, and that to the husband's knowledge, before the adultery committed with the co-respondent, the latter will not be liable in costs (z). But costs will be given against a co-respondent, where he well knew the respondent was a married woman, though there was some remiss- ness on the part of the husband (a). But the exercise of the discretion as to costs vested in the Court by section 34 of the 20 & 21 Vict. c. 85, 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 respondent to be a married woman, when the adultery was committed, it does not necessarily follow that he will be condemned in the whole of the costs. Misconduct Where a respondent in her answer charged the pe- of petitioner. ° c titioner with wilful neglect and misconduct, and that charge was negatived by the verdict of the jury, and a decree was granted on the ground of her adultery with the co-respondent and with another person who was not a party to the suit, the Court, being of opinion that the conduct of the petitioner had been such as to (x) Teagle v. Teagle and Not- (y) Manton v. Manton, 34 L. tingham, 27 L. J., P. & M. 55 ; J., P. M. & A. 121. Boddington v. Boddington and (z) Boyd v. Boyd and Col- Nossiter, 27 L. J., P. & M. 54 ; lins, 1 Sw. & Tr. 562. Priske v. Priske, 29 L. J., P. (a) Badcoctc v. Badcock and M. & A. 158. Chamberlain, 1 Sw. & Tr. 189. Digitized by Microsoft® costs. 287 invite reasonable challenge, refused to condemn the Costs against co-respon- co-respondent in the whole of the costs of the suit, dent. and condemned him in those costs only which had been incurred in proving the respondent's adultery with him (b). And where, in a suit for dissolution of marriage by a husband, the adultery of the wife is proved, but the petition is dismissed under the 31st sect, of the 20 & 21 Vict. c. 85, on account of the husband's marital misconduct, the co-respondent will not be condemned in costs, nor will be allowed any(c). Similarly, where in a suit for dissolution of marriage by a husband the adultery was proved, but the peti- tion was dismissed on the ground of the gross mis- conduct of the petitioner, the Court refused to make any order as to the costs of the petitioner or co- respondent (d). And where a co-respondent was found to have been guilty of adultery, and the peti- tion was dismissed by reason of the husband's (the petitioner) adultery, the co-respondent was condemned in such costs as were incurred by the husband in re- spect of the issjie of adultery found in his (the hus- band's) favour (e). On the other hand, where the husband petitioned when co- respondent for a dissolution of his marriage on the ground of the entitled to. adultery of his wife with the co-respondent, which on the hearing was proved, but in addition the co-re- spondent also proved that the petitioner had himself been guilty of incestuous adultery, and the petition was dismissed : It was held, that, although the co- respondent was liable for the costs of proving the wife's adultery, he was entitled to be paid the costs of the issue against the husband on which he had (b) Codrington v. Codrington M. & A. 94. and Anderson, 34 L. J., P. M. (d ) Hick v. Hick, 34 L. J., &c A. 60. P. M. & A. 11. (c) Seddon v. Seddon, 31 L. (e) Bremner v. Bremner and J., P. M. & A. 101 ; Clarke v. Brett, 12 W. R. 444. Clarke and Clarke, 34 L. J., P. Digitized by Microsoft® 288 costs. Co-respon- succeeded ( f). And where the jury found that the dent. w ' respondent and co-respondent had committed adultery together, that the petitioner had condoned such adul- tery ; and further, that the petitioner had connived at his wife's adultery with another person, and they as- sessed the damages at one farthing: the Court dismissed the petition, and ordered the petitioner to pay the costs of the respondent and of the co-respondent ( g). And where the jury found that the respondent had been guilty of adultery, but that there was not suffi- cient evidence against the co-respondent, his conduct having 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 (A). 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 the petition was dismissed (i). But in a suit by a husband for dissolution of mar- riage, the co-respondent appeared but filed no answer; upon a motion by the petitioner for the> dismissal of the petition as against the co-respondent, on the ground that there was no evidence against him, it was held the application could only be granted upon payment when peti- of the co-respondent's costs (k). But the Court will tion dis- v ' missed. n t always order the petitioner to pay the co-respond- ent's costs when the petition is dismissed : In a case where the jury were discharged without giving a verdict, and the petitioner did not proceed to a second trial, but allowed his petition to be dismissed, the Court, under the peculiar circumstances of the case, declined to order him to pay the co-respondent's costs (?). (/) Conradi v. Conradi and (i) Winscom v. Winscom, 12 Flashman, 35 L. J., P. M. & A. W. R. 535. 49. (k) Smith v. Smith and Mil- (g) Adams v. Adams, 36 L. let, 34 L. J., P. M. & A. 11. J., P. & M. 62. (!) Bancroft v. Bancroft, 34 (h) Robinson v. Robinson, 32 L. J., P. M. & A. 144. L. J., P. M. & A. 210. Digitized by Microsoft® costs. 289 On the trial of the issues in a husband's suit for When en- titled to. dissolution of marriage, no witnesses were called by the respondent or the co-respondent, and the jury, being unable to agree, were discharged without giving a verdict ; When the issues came on for trial a second time, witnesses were called by the co-respondent, and the jury found a verdict of not guilty : The Court refused to condemn the petitioner in the co-respond- ent's costs of the first trial (m). The question of costs is in the discretion of the Court, and depends on the particular circumstances of each case. In a suit by a husband for dissolution of marriage, the case against the co-respondent rested on the evidence of two wit- nesses, and the jury being unable to agree, they were discharged without a verdict: The petition was sub- sequently dismissed : The Court, being of opinion that the jury might reasonably have a difficulty in believing those witnesses, condemned the petitioner in the co-respondent's costs (ri). When in a suit for dissolution the co-respondent is Costs of attorney. condemned in costs, he is liable for the costs of the petitioner and respondent, incurred in obtaining an Marriage „ , . . / \ -r» ■ /. settlement. alteration 01 the marriage settlement (o). ±>ut 11 part of such an application fails, and the costs of that part can be separated in taxation from the other costs, they ought not to be thrown on the co-respondent (p). At the hearing, the adultery of the respondent with the co-respondent was proved, but, as the adultery of the petitioner was also proved, the petition was dis- missed, and an order made condemning the co-re- spondent in the costs incurred by the petitioner in proving his adultery with the respondent : Held that this order comprised all the expenses incidental to the (m) Wight v. Wight and Field, (o) Gill v. Gill and Hogg, 1 L. R., P. & D. 368. 33 L. J., P. M. & A. 43. («) Whitmore v. Whitmore (p) Slone v.Slone andBrown- and Breltell, 35 L. J., P. M. & rigg, 3 Sw. & Tr. 372. A. 32. Digitized by Microsoft® 290 COSTS. Co-respond- ent. Queen's Proctor. No costs unless collu- sion proved. filing and prosecution of the petition, so far as they related to the adultery of the co-respondent (g). Where, in a suit by a husband for dissolution, the jury were discharged without giving a verdict, and the petitioner did not go to a second trial, and the petition was dismissed, and there was no evidence connecting the co-respondent with the respondent, except that of two witnesses who swore to acts of adultery, but whose evidence did not satisfy the jury that adultery had been committed, the Court con- demned the petitioner in the co-respondent's costs (r). Queen's Proctor. — When the Queen's proctor in- tervenes and shows cause against a decree nisi being made absolute, and fails in establishing his case, semble, the Court has no power to order him to pay the petitioner's costs caused by the intervention (s). At all events the Court will not order the costs to be paid by the Crown, if the petitioner's conduct has been such as to justify the intervention (t). Where the Queen's proctor fails in showing cause against a decree nisi being made absolute, his costs will be the costs of his office (w). But, generally, where a decree nisi is reversed on the intervention of the Queen's proctor, the petitioner will be condemned in the costs of such intervention (x). Though it was decided by the House of Lords, reversing the judgment of the Judge Ordinary, that where, on the intervention of the Queen's proctor, the decree nisi is rescinded and the petition dismissed, but no case of collusion is estab- lished, the Court has no power to condemn the peti- tioner in the costs of the Queen's proctor's interven- tion (y). (q) Baker v. Baiter, 36 L. J., P. & M. 119. (r) Whitmore v. Whitmore and Brettell, 1 L. R., P. & D. 25. (s) Rogers v. Rogers, 31 L. J., P. M. & A. 101 ; Gray v. Gray, 2 Sw. & Tr. 559. (/) Jessop v.Jessop, 30 L. J., P. M. & A. 193. (u) Cox v. Cox, 2 Sw. & Tr. 306. (x) Boulion v. Boulton and Page, 2 Sw. & Tr. 638. (y) Lautour v. Queen's Proc- Digitized by Microsoft® costs. 291 Similarly, where the Queen's proctor does not in- Queen's proctor. terrene in his official capacity, but appears as one of the public, the Court has no authority to award him his costs (z). And where he intervened and charged collusion, that material facts had not been brought before the Court, ' and that the petitioner had been guilty of adultery, and at the hearing established the first two charges and abandoned the last, the Court refused to condemn the petitioner in costs, on the ground that he had been put to great expense in pre- paring to defend the charge of adultery (a). The proper mode of reviewing a taxation of costs Taxation, is by moving, as in the common law courts, for a rule viewed"." to show cause why the taxation should not be re- viewed, and not by act on petition (6). But the Court will not order the registrar to review his taxation of a bill of costs, unless it appears that such taxation is wrong on principle (c). The number of witnesses whose expenses are to be what win be allowed. allowed, is a question for the discretion of the regis- trar, who should allow the expenses of such as there was reasonable ground for calling or subpoenaing (rf). The fee of counsel for advising on the sufficiency of an answer which is special, and not a mere traverse of the allegations in the wife's petition, will be allowed on taxation of costs (e). Term refresher fees will be allowed on taxation (f). The costs of a party's appearance on a motion will not be allowed if such appearance is unnecessary, although he may have received notice to appear from tor, 12 W. R. 611 ; 33 L. J., L. J., P. & M. 94. P. M. & A. 89 ; Bowen v. (e) Cooke v. Cooke, 33 L. J., Bowen, 33 L. J., P. M. & A. P. M. & A. 79. 129. (d) Allen v. Allen, 30 L. (x) Bowen v. Bowen and J., P. M. & A. 9. Evans (Q. P. intervening) 3 (e) Hepworth v. Hepworth, Sw. & Tr. 530. 30 L. J., P. M. & A. 253. (a) Barnes v. Barnes, 37 L. (/) Stoate v. Stoate, 30 L. J., P. & M. 4. J., P. M. & A. 214. (b) Dickens v. Dickens, 28 o2 Digitized by Microsoft® 292 ENFORCING DECREES AND ORDERS. what will be the opposite side(gr). And where two separate mo- tions for an attachment against a hushand were made on the same day, one for non-payment of costs, the other for non-payment of alimony, the Court only allowed the costs of one motion (h). And where an application should be made on summons and not on motion ; if made on motion, the husband will be liable for so much only of the costs of the application as would have been incurred on summons («'). of appeal. 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 de- clared the marriage null, and remitted the cause to this Court, but made no order as to the costs of the proceedings in the Court below : Held, that this Court had no power to give the appellant costs (k). Examples of Bills of Costs are given in Appendix III. to assist the practitioner. When regis- tered in ENFORCING DECREES AND ORDERS. 20 & 21 Vict. c. 85, s. 52. " All decrees and orders to be made by the Court " in any suit, proceeding or petition to be instituted " under authority of this Act, shall be enforced and " put in execution in the same or the like manner as " the judgments, orders and decrees of the High " Court of Chancery may be now enforced and put in " execution." For the Eules of the High Court of Chancery, see Appendix II., " Eules in Chancery." Registration in Common Pleas. — It is questionable (g) Frebout v. Frebout and Penny, 30 L. J., P. M. & A. 214. (h) Watts v. Watts, 31 L. J., P. M. & A. 29. (£) Cooke v. Cooke and Allen, 3 Sw. & Tr. 603. (*) L— (falsely called H-) v. H~, 36 L. J., P. & M. 76. Digitized by Microsoft® ENFORCING DECREES AND ORDERS. 293 how far decrees and orders, made by the Court fdr common Pleas. Divorce, can be enforced by entering them in the registry of the Court of Common Pleas, under 1 & 2 Vict. c. 110. Vice-Chancellor Stuart held, that the decrees and orders of the Court of Probate could not be so enforced (I). This decision was supported by the Lord Chancellor on appeal (m). The words of the 20 & 21 Vict. c. 85, s. 52, certainly are very like to those of the corresponding section of the Court of Probate Act, 20 & 21 Vict. c. 77, s. 25. But where a decree was made in a suit in the Divorce Court, whereby the husband was ordered to pay to the wife an annuity of 100Z. payable by monthly instalments, and was registered in the book of judgments of the Court of Common Pleas, that Court refused to order it to be struck out, leaving the question of how far it could be made available against the husband, open for discussion (ra). The different methods by which the decrees and orders of the High Court of Chancery are enforced are : — 1. Attachment for Contempt. Decrees and , orders where- 2. Sequestration. by any sum of money, 3. Fi. Ka. costs or charges are 4. Elegit. payable to any person. Originally a decree of the High Court of Chancery (unless it was for land) operated only in personam, and the only methods of enforcing it was either by process of contempt against the party disobeying it, under which the party, if arrested, might be kept in prison till he obeyed, or by sequestration, where either the disobedient party could not be arrested, or where, having been arrested, he remained in prison without paying obedience to the Court (o). (0 Pratt v. Bull, 32 L. J., J., C. P. 111. Ch. 21. (o) Daniell, Ch. Pr. 927, 4th (m) Ibid. 144. ed. (n) Ex pw te Holden, 32 L. Digitized by Microsoft® 294 ENFORCING DECREES AND ORDERS. Sequestra- tion. Attachment lor con- tempt. By a writ of sequestration, commissioners were di- rected to sequester the personal property of the party, and the rents and profits of his real estate, and to keep him from the enjoyment of them till he had cleared his contempt. Both these processes were originally for the purpose of coercing the disobedient party, and it is said to be a modern innovation to apply the profits received by the commissioners under a sequestration to the liqui- dation of the sum decreed to be paid. These two methods are applicable to all orders and decrees of the Court for Divorce. Such decrees or orders as direct a sum or sums of money or costs to be paid may be enforced by a fi. fa. or elegit, as the case may require (p). As to how to obtain and prepare writs of attachment, fi. fa. and sequestration, see Rules 110, 111, 112. I am not aware that a writ of elegit has ever been applied for. Imprisonment for a contempt is not, as often erro- neously supposed, either in the discretion, or termi- nable at the pleasure of the ecclesiastical judge by whom the party is pronounced in contempt : " This Court can no more release in the way prayed than a judge at common law can, at pleasure, release a de- fendant who is imprisoned for non-payment of damages recovered in an action" (Sir John Nicholl) (q). Where a person has been fined for contempt of Court by threatening a suitor, but submits himself before the fine has been estreated, he is liable to the costs of the application, and the fine will be estreated on his refusal to pay such costs (r). A party who is in contempt for non-compliance with an order of the Court cannot be heard, except for the purpose of (p) 1 & 2 Vict. u . 110, 5 . 20; Order XXIX. 6— 13. See Appendix II. (q) Barlee v. Barlee, 1 Add. 301. (r) Re Mulock, 3 Sw. & Tr. 599. Digitized by Microsoft® ENFORCING DECREES AND ORDERS. 295 purging the contempt (s). But a party may waive Attachment. the contempt of his opponent ; for where a party, being in contempt, appeared, and no objection was made nor anything urged in regard to the contempt, it was held that such contempt had been waived, and that the party had a right to appeal (t). The Court will pronounce an Irish peer in contempt for non-payment of costs, and direct such contempt to be signified, leaving the Lord Chancellor to decide whether the writ de contumace capiendo should issue (m). When not granted. — Where the husband, a common where hus- labourer, dependent on his weekly earnings and pos- labourer, no n n • n i l attachment sessed of no property, except turmture of the value allowed; of 41., had failed to pay alimony pendente lite, the Court refused to allow an attachment to issue against him ; but permitted the wife to sue out a writ of fi. fa. but a fieri for the purpose of levying the arrears (a;). allowed. The Court refused to issue an attachment against a husband for non-payment of the wife's costs in a suit for judicial separation, in which she was the peti- tioner, upon an affidavit being made by him showing * that he had not the means of paying them {y). And where damages and costs are not paid pursuant to an Fieri facias, order of the Court, leave will be granted to issue a fieri facias under sect. 52 of 20 & 21 Vict. c. 85 (z). The Court will not issue an attachment against a Married women with- married woman, who has no separate property, for not out separate property. obeying an order for the payment of money (a). But it was held in a probate cause, that the onus of estab- lishing that fact lay upon her ; and if she does not appear upon a motion for an attachment, of which (s) Garstin v. De Garston, 34 P. M. & A. 17. L. J., P. M. & A. 45. (y) Holland v. Holland, 34 (t) Harrison V. Sparrow, 3 L. J., P. M. & A. 65. Curt. 1. C 2 ^ Reed v. Reed, 29 L. J., (u) Westmeath v. Westmeath, P. M. & A. 158. 2 Hag. 653. ( a ) Harris v. Bradbury, 31 (x) Ward v. Ward, 29 L. J., L. J., P. M. & A. 86. Digitized by Microsoft® 296 ENFORCING DECREES AND ORDERS. Attachment. Bankrupt. For nonpay- ment of costs of wife ; and suit stayed. Attachment allowed pur- suant to ar- rangement. Payment of costs. she has had notice, the Court will grant the attach- ment (b). And where a bankrupt has obtained an order of discharge under the Bankruptcy Act, 1861, he is thereby protected from any proceeding to enforce the payment of alimony, for the non-payment of which he has been attached before the order of discharge : A sequestration against his estate for such alimony will, therefore, not be granted (c). When granted. — The inability of a husband, re- spondent in a matrimonial suit, to deposit in the re- gistry, or give security for a sum of money to defray the wife's costs of the hearing pursuant to order, is no ground for refusing an attachment against him for non-compliance with the order. Where the hus- band is petitioner, and does not comply with such an order, the Court will stay the suit (rf). Where there was a balance due from the petitioner (the husband) for alimony and costs, and there had been an arrangement between the parties that the balance should be paid by monthly instalments of 201., and that an attachment should be granted against him, but to remain in the registry until he made default in payment of one of the instalments, the Court dismissed * the petition, and decreed an attachment on the terms arranged (e). The Court will not withhold the enforcement of its order, by reason that the party obtaining such order is in contempt of the Court of King's Bench, and is resident out of the country, in order to evade the pro- cess of that Court (f ). Praeta'ce.— Service of an order for payment of costs is effected by leaving an office copy of the order with (b) Parker v. Hick, 33 L. J., P. M. & A. 154. (c) Dickens v. Dickens, 31 L. J., P. M. & A. 183. id ) Hepworth v. Hepworth, 31 L. J., P. M.& A. 18. (e) Bremner v. Bremner and Brett, 12 W. R. 441; 3 Sw. & Tr. 378. ( / ) Greenhill v. Greenhill, 1 Curt. 465. Digitized by Microsoft® ENFORCING DECREES AND ORDERS. 297 the party chargeable, and at the same time producing the original order (but the practice is different as to an order for alimony) (a); unless the original be pro- Payment of J ' y:y ' ' ° r alimony, see duced, an attachment will not be granted. Where p. 153. service cannot be effected in consequence of the ori- ginal order being filed in the registry, the Court will, upon motion, direct that it be delivered out that it may be served (A). Sometimes the order is merely an entry in the Registrar's book, in which case, of course, only an office copy can be obtained. Where it is sought to charge a second attachment second . . . attachment. upon a person already in custody under a prior writ, the practice of the Court is conformably with that of the Court of Chancery, that, upon motion for such writ, a habeas should issue to the keeper of the Queen's Prison to bring up the prisoner, and upon his being present upon the day named, that he should be charged accordingly (i). But where costs are ordered to be paid within a when attach- ment granted specified time, an attachment for non-payment will be without pre- granted though there has been no personal demand (A), mana. Under the New Orders in Chancery a personal demand Personal demand is unnecessary (/). unnecessary. But an attachment for non-payment of alimony was Form of granted, although the order did not state to whom payment was to be made, where it appeared that the wife and her solicitor had, at the same time, demanded payment of the husband, and he had paid neither (m). In the Ecclesiastical Courts, before a party could be pronounced in contempt for disobedience to a decree for restitution of conjugal rights, a monition issued calling on him to obey the decree. In this Court the (g) Parr v. Parr, 32 L. J., L. J., P. M. & A. 115. P. M. & A. 91. (/) Order XXIX. sect. l.Hil. (h) Davies v. Davies, 31 L. Term (Ch.) 1860, Appendix J., P. M. & A. 104. 1IT. (i) Dickens v. Dickens, 32 (m) Ladmore v. Ladmore, 82 L. J., P. M. &. A. 59. L. J., P. M. & A. 157. (*) Nicholls v. Nicholls, 31 o5 Digitized by Microsoft® 298 ENFORCING DECREES AND ORDERS. decree should contain an order that it be obeyed within a time specified ; if it does not, the Court will not grant an attachment until such order has been served (w). obedience to Where a husband has been served with a decree in a decree in . „ .. . .-,., . . 1 . restitution, a suit for restitution of conjugal rights, ordering mm to take his wife home, he is bound to take the first step by inviting her to return to him : If he does not, when notice an attachment will be issued : If he has not ap- not requisite. . peared in the suit, notice of the motion for an attach- indorsement ment is not requisite (o). The omission to indorse on writ of attachment, on a writ of attachment issued for nonpayment of costs, the amount, is a mere irregularity which will be waived by delay in applying to the Court to set aside the writ ( p). Affidavit An affidavit of nonpayment of taxed costs and cannot be,. read if filed alimony to the person to whom they are ordered to be after notice . of motion. paid, cannot be read on a motion for an attachment, if filed subsequently to the notice of motion (§■). Must be by Nor will the Court allow an attachment to issue to whom against a party, for nonpayment of costs pursuant to money is to be paid; an order, unless there be affidavits by all the persons to whom those costs are payable, that they have not stric"? s ° been paid. But the same strictness is not required tiau eStrs ~ before issuing a sequestration (r). Copy order to And an attachment will not be granted for non- or recited in payment of money pursuant to order, unless a copy of affidavit. the order be annexed to or recited in the affidavit of service (s). costs. When two separate motions were made on the same day for an attachment against the husband, one (n) Cherry v. Cherry, 29 L. 215. J., P. M. & A. 141 . (r) Bayly v. Bayly, 29 L. J., (o) Alexander v. Alexander, P. M. & A. 146. 30 L. J., P. M. & A. 173. (s) Lidmore v. Lidmare, 32 (p) Pearson v. Pearson, 31 L. J., P. M. & A. 134; and L. J., P. M. & A. 102. Bushby v. Bushby, 30 L. J., ( q) Symons v. Symons and P. M. & A. 172. Pike, 30 L. J., P. M. & A. Digitized by Microsoft® ENFORCING DECREES AND ORDERS. 299 for nonpayment of costs, the other for nonpayment of costs of alimony, the Court, in granting an attachment, allowed attachment. the costs of only one motion (t). The Court has power to enforce an attachment Power of x Court after after the petition has been dismissed (u). petition v / dismissed. Rule 112 (1866) provides, that any person in custody Discharge under a writ of attachment may apply for a discharge tod™." 1 " to the Judge Ordinary if the Court be then sitting. If not, then to one of the Eegistrars, who for good cause shown shall have power to order such discharge. A sequestration may issue, although no attachment Sequestra- ii \ tion - has been granted (x). The next method of enforcing obedience to the process of the Court is by sequestration. The nature of this process has already been treated of (page 293), it only remains to show the mode of procuring the writ and its operation. In the Court of Divorce, it can only be obtained by motion made to the Judge Ordinary in Court ( y). Under a sequestration, the sequestrators may take what may all the goods and chattels in the possession of the dis- obedient person, or which they can come at without suit or action. Choses in action may be taken under sequestration Choses action in some cases or a voluntary payment may be pro- tected (z). The question, however, how far a chose in action may be liable to sequestration is not free from doubt. It seems clear where the party liable to the person whose property is sequestered is willing to abide by the order of the Court, or who admits it to belong to such person, the Court will consider it (t) Watts v. Watts, 31 L. J., P. & M. 61 ; Clinton v. Clinton P. M. & A. 29. ' 1 L. R. 215. («) Bremner v. Bremner and (y) Rule 110, 1866, Brett, 12 W. R. 444, and 33 (z) Wilson v. Metcalfe, 1 L. J., P. M. & A. 202. Beav. 263. (x) Dent v. Dent, 36 L. J., Digitized by Microsoft® 300 ENFORCING DECREES AND ORDERS. liable to sequestration and order it to be paid into Court, and such a payment will be protected (a). Where, however, the party alleged to be liable dis- putes his liability or its amount, it seems the Court will make no order, as being no party to the record before the Court, he could not be affected by an order made in a suit to which he is no party, and in which he could not be heard (6). The salary of an equerry (c) or the half-pay of an officer in the army or navy (d), cannot be attached. But the principle is, that where the payment is partly for future services and partly as a reward for past ser- vices it cannot be sequestered, but where it is solely for past services it may ; therefore, the half-pay or pension of a retired officer in the Indian navy (which has been abolished) may be sequestered, it being a payment solely for past services (e). (a) Franklyn v. Colhoun, 3 Swans. 276, 311 ; Lord Pelham v. Duchess of Newcastle, ibid. 290 ; Johnson v. Chippendale, 2 Sim. 54, 64. (b) Simmonds v. Lord Kin- naird, 4 Ves. 735. (c) Fenton v. Louther, 1 Cox, Eq. Ca. 315. {d ) Macarthy v. Gould., 1 Ball & B. 387. (e) Dent v. Dent, 36 L. J., P. & M. 61. Digitized by Microsoft® THE FOLLOWING PRINCIPAL STATUTES AFFECTING MAREIAGE. 25 Hen. 8, c. 22. Marriage within prohibited degrees. 28 Hen. 8, c. 7 (sect. 11). Which be those degrees. 28 Hen. 8, c. 16. Licences and dispensations from the See of Rome. 32 Hen. 8, c. 38. For marriages to stand, notwithstanding pre- contracts. (Though this and the two first-mentioned statutes have been actually or virtually repealed, see the obser- vations of Lord Cranworth in Brook v. Brook, 9 H. of L. Cas. 226.) 2 & 3 Edw. 6, c. 23. To repeal (in part) the last-mentioned act. 1 Eliz. c. 1. Reviving 32 Hen. 8, c. 38. 1 James 1, c. 25, s. 49. Reviving 2 & 3 Edw. 6, c. 21, by which priests may marry, and no marriage to be without asking in church and the ceremony appointed in the Prayer Book. 12 Ch. 2, c. 33. Marriages since 1642 before reputed justices of the peace to be as if according to the Church of Eng- land. 26 Geo. 2, c. 33. Clandestine marriages. 12 Geo. 3, c. 11. Royal marriages. 31 Geo. 3, c. 53. All marriages before 1st August, 1781, in churches erected since the 26 Geo. 2, c. 33, valid. 44 Geo. 3, c. 77. Extending the above to 25th March, 1805, and making registers evidence. 48 Geo. 3, c. 127. Ditto to 23rd August, 1808, and making registers evidence. Digitized by Microsoft® 302 STATUTES AFFECTING MARRIAGE. 52 Geo. 3, c. 146. Parish registers of marriage. 58 Geo. 3, c. 81. Extending 26 Geo. 2, c. 33, s. 13, to Ireland, and abolishing pre-contracts. 58 Geo. 3, c. 84. Indian marriages by ministers of the Church of Scotland appointed by the East India Company valid. 3 Geo. 4, c. 75. To amend the 26 Geo. 2, c. 33, as to the consent of parents, &c. 4 Geo. 4, c. 5. To render valid marriages by licences granted by surrogates, &c, notwithstanding 3 Geo. 4, c. 75, s. 14. 4 Geo. 4, c. 17. Repealing 3 Geo. 4, c. 75, ss. 8 — 26, et alia. 4 Geo. 4, c. 76. See Appendix T. 5 Geo. 4, c. 32. Amending and extending 4 Geo. 4, c. 76, s. 13. 6 Geo. 4, c. 92. To render valid marriages in churches and chapels built since 26 Geo. 2, c. 33, and 44 Geo. 3, c. 77. 11 Geo. 4 & 1 Will. 4, c. 18. To validate marriages had in certain places during the repairs of the regular church or chapel. See Stalwood v. Tredgar, 2 Phill. 287. 3 &4 Will. 4, c. 102. Repealing 6 Ann. (Ir.), c. 16; 12 Geo. 1 (Ir.), c. 3 ; 23 Geo. 2 (Ir.), c. 10 ; 12 Geo. 3 (Ir.) ; 33 Geo. 3 (Ir.), c. 21, passed in the Irish Parliament, so far as same make it felony for Roman Catholic clergy- men to celebrate marriages between Protestants— not to give validity to marriages (sect. 3). 4 & 5 Will. 4, c. 28. Roman Catholic ministers in Scotland. Re- pealing 1 Pari. Ch. 2, s. 1, c. 34 ; 1 Pari. Wm. 3, s. 7, c. 6, so far as same prohibited Roman Catholic priests from celebrating marriages in Scotland. 5 & 6 Will. 4, c. 54. Altering the law with respect to voidable mar- riages. 6 & 7 Will. 4, c. 85. See Appendix I. 6 & 7 Will. 4, c. 86. See Appendix I. 7 Will. 4 & 1 Vict. c. 1. Suspending 6 & 7 Will. 4, cc. 85, 86, for a limited time. 7 Will. 4 & 1 Vict. c. 22. Explaining and amending 6 & 7 Will. 4, cc. 85, 86. 3 & 4 Vict. c. 72. To provide for solemnization in the district in or near which parties reside. 3 & 4 Vict. c. 92. To enable courts of justice to admit non-parochial registers as evidence. 5 & 6 Vict. c. 113. Confirmation of marriages in Ireland by Presby- terian or other dissenting ministers. Digitized by Microsoft® STATUTES AFFECTING MARRIAGE. 303 6 & 7 Vict. c. 39. Confirmation of marriages in Ireland by Protes- tant dissenting ministers. 7 & 8 Vict. c. 66. Solemnization in district churches. 7 & 8 Vict. c. 81. For registering such (Ireland). 8 & 9 Vict. c. 54. Celebration of marriages (Ireland). 9 & 10 Vict. c. 72. To amend 7 & 8 Vict. c. 81 (Ireland). 10 & 11 Vict. c. 58. Quakers and Jews. 12 & 13 Vict. c. 66. For facilitating marriages of British subjects in foreign countries. 12 & 13 Vict. c. 99. To amend 7 & 8 Vict. c. 81 (Ireland). 14 & 15 Vict. c. 40. Indian marriages. 14 & 15 Vict. c. 97, s. 14. Marriages in certain churches not to be questioned unless fraud. 15 & 16 Vict. c. 25. Tp provide general registry office. 17 & 18 Viot. c. 80. Registration in Scotland. 18 & 19 Vict. c. 29. Registration (Scotland). Amending 17 & 18 Vict. c. 80. 19 & 20 Vict. c. 96. Scotch law amending. 19 & 20 Vict. c. 119. See Appendix I. 21 & 22 Vict. c. 25. To amend the act concerning non-parochial re- gisters, and the acts for marriages and for registering marriages. 23 & 24 Vict. c. 18. Quakers' marriages ; amending and extending acts. 23 & 24 Vict. c. 24. Extra-parochial places. 26 & 27 Vict. c. 27. Marriages (Ireland) ; amending acts. 26 & 27 Vict. c. 90. Marriages registration (Ireland). 28 & 29 Vict. c. 64. Colonial marriages, validity. Digitized by Microsoft® ( 304 ) The following Places are specially provided for by the Statutes set out. Ambassadors' chapels . Baldersby . Hamburgh Hartlepool West (Christ Church) Hulme Ionian Islands Lamborne Lisbon Mexico Moscow Newfoundland Ningpo Oxford (St. Clements) Kainow Rochdale Rydal St. Petersburgh Tahiti Todmoi'den Upton-cum-Chalvey (Bucks) Wandsworth (St. Anne's Chapel) .64. .46. . 4 Geo. 4, c. 91. 22 Vict. c. 24. . 3 & 4 Will. 4, c. 45. 20 & 21 Vict. c. 29. . 16 & 17 Vict. c. 122. i 23 & 24 Vict. c. 86. I 27 & 28 Vict. c. 77. . 28 & 29 Vict. c. 81. 22 & 23 Vict. c. . 7 & 8 Vict. c. 21 & 22 Vict. c. . 5 Geo. 4, c. 32. 21 & 22 Vict. c. 46. 6 & 7 Will. 4, c. 92. 24 & 25 Vict. c. 16. 18 & 19 Vict. c. 66. 23 & 24 Vict. c. 1. 4 Geo. 4, c. 67. 21 & 22 Vict. c. 46. 18 & 19 Vict. c. 66. 13 & 14 Vict. c. 38. 6 & 7 Will. 4, c. 24. Digitized by Microsoft® 305 APPENDIX I. STATUTES. 4 Geo. 4, c. 76. An Act for amending the Laws respecting the Solemnization of Marriages in England (a). [18th July, 1823. | "Whereas it is expedient to amend the laws respecting the solemnization of marriages in England : Be it enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and com- mons, in this present parliament assembled, and by the au- thority of the same, that from and after the first day of November next ensuing the passing of this act so much of an act passed in the twenty-sixth year of the reign of king George the Second, intituled " An Act for the better pre- 26 Geo. 2, venting of Clandestine Marriages," as was in force imme- c ' 33 ' diately before the passing of this act, and also an act passed in the present session of parliament, intituled "An Act to 4 Geo. 4, repeal certain provisions of an act passed in the third year c - ll - of his present Majesty, intituled ' An Act to amend certain provisions of the twenty-sixth of George the Second, for the better preventing of Clandestine Marriages,' " shall be and repealed. the same are hereby repealed ; save and except as to any acts, matters, or things done under the provisions of the said recited acts or either of them before the said first day of November, as to which the said recited acts shall respec- tively be of the same force and effect as if this act had not been made ; save also and except so far as the said recited acts or either of them repeal any former act, or any clause, matter, or thing therein contained. IT. And be it further enacted, that from and after the Banns, first day of November all banns of matrimony shall be pub- wb , er . e ' when » ,. i . • t, i ,t 'ill. • ana now lished in an audible manner in the parish church, or in some published, public chapel, in which chapel banns of matrimony may andmarriage now or may hereafter be lawfully published, of or belonging ^Izea where to such parish or chapelry wherein the persons to be married banns pub- shall dwell, according to the form of words prescribed by the lisned - Kubric prefixed to the Office of Matrimony in the Book of Common Prayer upon three Sundays preceding the solemni- (a) Repealed as to registration. Digitized by Microsoft® 306 Appendix I. Bishop, with consent of patron and incum- bent, may authorize publication of banns in any public chapel. Notice to be placed in such chapel. Provisions relative to marriage registers extended to chapels so authorized as aforesaid. Book to be provided for the regis- tration of banns, &c. zation of marriage, during the time of morning service, or of evening service (if there shall be no morning service in such church or chapel upon the Sunday upon which such banns shall be so published), immediately after the second lesson ; and whensoever it shall happen that the persons to be married shall dwell in divers parishes or chapelries, the banns shall in like manner be published in the church or in any such chapel as aforesaid belonging to such parish or chapelry wherein each of the said persons shall dwell ; and that all other the rules prescribed by the said Rubric con- cerning the publication of banns and the solemnization of matrimony, and not hereby altered, shall be duly observed ; and that in all cases where banns shall have been published the marriage shall be solemnized in one of the parish churches or chapels where such banns shall have been pub- lished, and in no other place whatsoever. III. And be it further enacted, that the bishop of the diocese, with the consent of the patron and the incumbent of the church of the parish in which any public chapel having a chapelry thereunto annexed may be situated, or of any chapel situated in an extra-parochial place, signified to him under their hands and seals respectively, may authorize by writing under his hand and seal the publication of banns and the solemnization of marriages in such chapel for per- sons residing within such chapelry or extra-parochial place respectively ; and such consent, together with such written authority, shall be registered in the registry of the diocese. IV. Provided always, and be it enacted, that in every chapel in respect of which such authority shall be given as aforesaid there shall be placed in some conspicuous part of the interior of such chapel a notice in the words following : " Banns may be published and marriages solemnized in this chapel." V. Provided always, and be it further enacted, that all provisions now in force, or which may hereafter be estab- lished by law, relative to providing and keeping marriage registers in any parish churches, shall extend and be con- strued to extend to any chapel in which the publication of banns and solemnization of marriages shall be so authorized as aforesaid, in the same manner as if the same were a parish church ; and every thing required by law to be done relative thereto by the churchwardens of any parish church shall be done by the chapelwarden or other officer exercising analo- gous duties in such chapel. VI. And be it further enacted, that on or before the said first day of November, and from time to time afterwards as there shall be occasion, the churchwardens and chapel- wardens of churches and chapels wherein marriages are solemnized, shall provide a proper book of substantial paper, marked and ruled respectively in manner directed for the register book of marriages ; and the banns shall be published from the said register book of banns by the officiating minister, and not from loose papers, and after publication shall be signed by the officiating minister, or by some person under his direction. Digitized by Microsoft® 4 Geo. 4, c. 76. 307 VII. Provided always, and it is hereby further enacted, Notice of the that no parson, vicar, minister, or curate shall be obliged to {J a ™| s a a d d publish the banns of matrimony between any persons what- time of soever, unless the persons to be married shall, seven days at abode of the least before the time required for the first publication of |?^n tomi- such banns respectively, deliver or cause to be delivered to raster seven such parson, vicar, minister, or curate, a notice in writing Siication dated on the day on which the same shall be so delivered, of of banns, their true christian names and surnames, and of the house or houses of their respective abodes within such parish or chapelry as aforesaid, and of the time during which they have dwelt, inhabited, or lodged in such house or houses respectively. VIII. Provided always, and be it enacted by the autho- Ministers not rity aforesaid, that no parson, minister, vicar, or curate punishable solemnizing marriages after the first day of November next, mirrars'witlE between persons both or one of whom shall be under the age out consent of twenty-one years, after banns published, shall be punish- & f c p „™]) ! ss able by ecclesiastical censures for solemnizing such marriages they have without consent of parents or guardians, unless such parson, JJ?" 06 ^.. minister, vicar, or curate shall have notice of the dissent of dissent pub- such parents or guardians ; and in case such parents or Holy de- guardians, or one of them, shall openly and publicly declare, il^ltion'ot'' or cause to be declared, in the church or chapel where the banns void. banns shall be so published, at the time of such publication, his, her, or their dissent to such marriage, such publication of banns shall be absolutely void. IX. And be it further enacted, that whenever a marriage RepuWica- shall not be had within three months after the complete n™ e °f a ^y™ s publication of banns, no minister shall proceed to the so- marriage not lemnization of the same until the banns shall have been solemnized republished on three several Sundays in the form and man- m 1 ' n 1 t ™ s three ner prescribed in this act, unless by licence duly obtained according to the provisions of this act. X. And it is hereby further enacted, that no licence of Licences to marriage shall from and after the said first day of November ?^ r A a "', e ?„ . i ■ i i j* marry in be granted by any archbishop, bishop, or other ordinary, or the church, person having authority to grant such licences, to solemnize &c. of such any marriage in any other church or chapel than in the JSein"™ parish church or in some public chapel of or belonging to of the parties the parish or chapelry within which the usual place of "nemi^s abode of one of the persons to be married shall have been before, for the space of fifteen days immediately before the granting of such licence. XI. And be it further enacted, that if any caveat be Where ca- entered against the grant of any licence for a marriage, such ™ at ^ mered caveat being duly signed by or on the behalf of the person t0 issue til i who enters the same, together with his place of residence matter ex- and the ground of objection on which his caveat is founded, a u n d 1 g e ed by no licence shall issue till the said caveat, or a true copy thereof, be transmitted to the judge out of whose office the licence is to issue, and until the judge has certified to the registrar that he has examined into the matter of the caveat, and is satisfied that it ought not to obstruct the grant of the Digitized by Microsoft® 308 Appendix I. Parishes where no church or chapel, and extra-paro- chial places, deemed to belong to any adjoining parish, &c. Where churches are demo- lished or under re- pair, banns to be pro- claimed in a church or chapel of an adjoining parish, &c. Oath to be taken before the surrogate as to certain particulars before li- cence is granted. licence for the said marriage, or until the caveat be with- drawn by the party who entered the same. XII. Provided always, and be it further enacted, that all parishes where there shall be no parish church or chapel belonging thereto, or none wherein divine service shall be usually solemnized every Sunday, and all extra-parochial places whatever, having no public chapel wherein banns may be lawfully published, shall be deemed and taken to belong to any parish or chapelry next adjoining, for the purposes of this act only ; and where banns shall be pub- lished in any church or chapel of any parish or chapelry adjoining to any such parish or chapelry where there shall be no church or chapel, or none wherein divine service shall be solemnized as aforesaid, or to any extra-parochial place as aforesaid, the parson, vicar, minister, or curate publishing such banns shall, in writing under bis hand, certify the publication thereof in the same manner as if either of the persons to be married had dwelt in such adjoining parish or chapelry. XIII. Provided always, and be it further enacted and declared, that if the church of any parish, or chapel of any chapelry, wherein marriages have been usually solemnized, be demolished in order to be rebuilt, or be under repair, and on such account be disused for public service, it shall be lawful for the banns to be proclaimed in a church or chapel of any adjoining parish or chapelry in which banns are usually proclaimed, or in any place within the limits of the parish or chapelry which shall be licensed by the bishop of the diocese for the performance of divine service during the repair or rebuilding of the church as aforesaid ; and where no such place shall be so licensed, then, during such period as aforesaid, the marriage may be solemnized in the adjoin- ing church or chapel wherein the banns have been pro- claimed ; and all marriages heretofore solemnized in other places within the said parishes or chapelries than the said churches or chapels on account of their being under repair, or taken down in order to be rebuilt, shall not be liable to have their validity questioned on that account, nor shall the ministers who have so solemnized the same be liable to any ecclesiastical censure, or to any other proceeding or penalty whatsoever. XIV. And be it further enacted, for avoiding all fraud and collusion in obtaining of licences for marriage, that before any such licence be granted, one of the parties shall personally swear before the surrogate or other person having authority to grant the same, that he or she believeth that there is no impediment of kindred or alliance, or of any other lawful cause, nor any suit commenced in any eccle- siastical court, to bar or hinder the proceeding of the said matrimony according to the tenor of the said licence ; and that one of the said parties hath, for the space of fifteen days immediately preceding such licence, had his or her usual place of abode within the parish or chapelry within which such marriage is to be solemnized ; and where either Digitized by Microsoft® 4 Geo. 4, c. 76. 309 of the parties, not being a widower or widow, shall be under the age of twenty-one years, that the consent of the person or persons whose consent to such marriage is required under the provisions of this act has been obtained thereto : pro- vided always, that if there shall be no such person or per- sons having authority to give such consent, then, upon oath made to that effect by the party requiring such licence, it shall be lawful to grant such licence, notwithstanding the want of any such consent. XV. Provided always, and be it further enacted, that it Bond not to shall not be required of any person applying for any such be required licence to give any caution or security, by bond or otherwise, ing licence. ~ before such licence is granted, anything in any act or canon to the contrary thereof notwithstanding. XVI. And be it further enacted, that the father, if living, Who are to of any party under twenty-one years of age, such parties gj'e consent not being a widower or widow; or if the father shall be under 'age! 16 dead, the guardian or guardians of the person or party so under age, lawfully appointed, or one of them ; and in case there should be no such guardian or guardians, -then the mother of such party, if unmarried; and if there shall be no mother unmarried, then the guardian or guardians of the persons appointed by the Court of Chancery, if any, or one of them, shall have authority to give concent to the mar- riage of such party ; and such consent is hereby required for the marriage of such party so under age, unless there shall be no person authorized to give such consent. XVII. And be it further enacted, that in case the father If the father or fathers of the parties to be married, or one of them, so of minor be under age as aforesaid, shall be non compos mentis, or the Sl^tis™?™ guardian or guardians, mother or mothers, or any of them if guardians whose consent is made necessary as aforesaid to the marriage ™ i ™° t !l er of . . , ,. y v minor be non of such party or parties, shall be non compos mentis, or in compos men- parts beyond the seas, or shall unreasonably or from undue ti8 > ... » were married m this > chapel J by \ ]icenc ; < w.th "consent of { ^^s, \ this ^ of in " the year . f Rector. " By me, J. J., < Vicar. C Curate. " This marriage was solemnized between us ? V," -^ E. F. Form. c 77 7/ " in the presence of 1 n jT XXIX. And be it further enacted by the authority afore- Persons con- said, that if any person shall, from and after the said first ™ te| i of B. P Digitized by Microsoft® 314 Appendix I. making a false entry; or of forging, &c. any such entry; or of forging, &c. any licence ; or of destroy- ing such register ; to be trans- ported. This Act not to affect marriages of royal family. Act not to extend to marriages of Quakers and Jews. Two printed copies of the Act to he sent to the ministers of the seve- ral parishes, &c, of which one to be kept in the parish chest. A ct only to extend to England. day of November, with intent to elude the force of this act, knowingly and wilfully insert or cause to be inserted in the register book of such parish or chapelry as aforesaid, any false entry of any matter or thing relating to any marriage ; or falsely make, alter, forge or counterfeit, or cause or pro- cure to be falsely made, altered, forged or counterfeited, or act or assist in falsely making, altering, forging or counter- feiting any such entry in such register ; or falsely make, alter, forge or counterfeit, or cause or procure to be falsely made, altered, forged or counterfeited, or assist in falsely making, altering, forging or counterfeiting any such licence of marriage as aforesaid ; or utter or publish as true any such false, al- tered, forged or counterfeited register as aforesaid, or a copy thereof, or any such false, altered, forged or counterfeited licence of marriage, knowing such register or licence of mar- riage respectively to be false, altered, forged or counter- feited ; or if any person shall, from and after the said first day of November, wilfully destroy or cause or procure to be destroyed any register book of marriages, or any part of such register book, with intent to avoid any marriage, or to subject any person to any of the penalties of this act; every person so offending, and being thereof lawfully con- victed, shall be deemed and adjudged guilty of felony, and shall suffer the punishment of transportation for life, according to the laws in force for the transportation of felons. XXX. Provided always, and be it enacted, that this act or anything therein contained shall not extend to the mar- riages of any of the royal family. XXXI. Provided likewise, and be it further enacted, that nothing in this act contained shall extend to any marriages amongst the people called Quakers, or amongst the persons professing the Jewish religion, where both the parties to any such marriage shall be of the people called Quakers, or per- sons professing the Jewish religion respectively. XXXII. And be it further enacted, that two printed copies of this act shall, as soon as conveniently may be after the passing of this act, be provided by his majesty's printer, and transmitted to the officiating ministers of the several parishes and chapelries in England respectively ; one of which copies shall be deposited and kept, with the book con- taining the marriage register of such parish or chapelry, in the chest or box provided for the custody of the same. XXXIII. And be it further enacted, that this act shall extend only to that part of the united kingdom called England. Digitized by Microsoft® 6 & 7 Will. 4, c. 85. 315 6 & 7 Will. 4, c. 85. An Act for Marriages in England. [17th August, 1836.] Whereas it is expedient to amend the law of marriages in England: Be it enacted by the king's most excellent ma- jesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parlia- ment assembled, and by the authority of the same, that After 1st of after the first day of March in the year one thousand eight March, 1837, hundred and thirty-seven, notwithstanding anything in this prescribed act contained, all the rules prescribed by the rubric concern- by the ru- ing the solemnizing of marriages shall continue to be duly rtrme tobe" observed by every person in holy orders of the Church of observed. England who shall solemnize any marriage in England : Provided always, that where by any law or canon in force Marriages before the passing of this act it is provided that any mar- m^ybe sole ni ni7C"u riage may be solemnized after publication of banns, such onproduc- marriage may be solemnized in like manner on production of <><"! uC the registrar's certificate as hereinafter provided: provided certificate, also, that nothing in this act contained shall affect the right of the archbishop of Canterbury and his successors, and his and their proper officers, to grant special licences to marry at any convenient time and place, or the right of any surro- gate or other person now having authority to grant licences for marriages. II. And be it enacted, that the Society of Friends com- Marriages monly called Quakers, and also persons professing the Jewish °{j®Je^ rs religion, may continue to contract and solemnize marriage according to the usages of the said society and of the said persons respectively ; and every such marriage is hereby declared and confirmed good in law, provided that the par- ties to such marriage be both of the said society, or both persons professing the Jewish religion respectively ; pro- vided also, that notice to the registrar shall have been given, and the registrar's certificate shall have issued in manner hereinafter provided. III. And be it enacted, that the superintendent registrar Superinten- of births and deaths of every union, parish, or place shall f entr f e S s ". be, in right of his office, superintendent registrar of marriages tobe°super- S within such union, parish, or place, and that such union, intendent parish, or place shall be deemed the district of such super- £J!^" r es of intendent registrar of marriages. IV. And be it enacted, that in every case of marriage to- Notice of tended to be solemnized in England after the said first day of £™Zi n " a March according to the rights of the Church of England ri^to™"" (unless by licence or by special licence, or after publication given to the of banns), and in every case of marriage intended to be ^ent'reg?"-" solemnized in England after the said first day of March ac- trarofthe cording to the usages of the Quakers or Jews, or according district. to any form authorized by this act, one of the parties shall orve notice under his or her hand, iu the form of schedule (A.) to this act annexed, or to the like effect, to the superin- p2 Digitized by Microsoft® 316 Appendix I. Superinten- dent regis- trar to keep notices in a book. Notices to be read at meet- ings of guar- dians. After aeven days, or twenty-one days, certifi- cate of no- tice to be given, upon demand. tendent registrar of the district within which the parties shall have dwelt for not less than seven days then next pre- ceding, or if the parties dwell in the districts of different superintendent registrars shall give the like notice to the su- perintendent registrar of each district, aud shall state therein the name and surname and the profession or condition of each of the parties intending marriage, the dwelling-place of each of them, and the time not being less than seven days during which each has dwelt therein, and the church or other building in which the marriage is to be solemnized ; provided that if either party shall have dwelt in tie place stated in the notice during more than one calendar month, it may be stated therein that he or she hath dwelt there one month and upwards. V. And be it enacted, that the superintendent registrar shall file all such notices, and keep them with the records of his office, and shall also forthwith enter a true copy of all such notices fairly into a book, to be for that purpose fur- nished to him by the registrar-general, to be called " The Marriage Notice Book," the cost of providing which shall be defrayed in like manner as the cost.of providing register books of births and deaths (a) ; and the marriage notice book shall be open at all reasonable times without fee to all per- sons desirous of inspecting the same ; and for every such entry the superintendent registrar shall be entitled to have a fee of one shilling. VI. Aud be it enacted, that if such superintendent regis- trar shall be clerk to the guardians of any poor law union, or of any parish or place comprising the district for which such superintendent registrar shall act, he shall read such notices as hereinafter directed ; and if he shall not be such clerk, then he shall transmit to such clerk on the day pre- vious to each weekly meeting of such guardians all such notices of intended marriage as he shall have received on or since the day previous to the weekly meeting immediately preceding the same ; and such clerk shall read such notices immediately after the minutes of the proceedings of such guardians at their last meeting shall have been read ; and such notices shall be so read three several times in three, successive weeks at the weekly meetings of such guardians, unless in any case licence for marriage shall be sooner granted, and notice of such licence being granted shall have been given to such clerk : provided also, that if it shall happen that the board of guardians of any such union, parish or place shall not so meet, it shall be sufficient for the purposes of this act that such notices shall be read at any meeting of such guardians which shall be held within twenty-one days from the day of such notice being entered. VII. And be it enacted, that after the expiration of seven days if the marriage is to be solemnized by licence, or of twenty-one days if the marriage is to be solemnized without licence, after the entry of such notice, the superintendent (a) See 21 & 22 Vict. c. 25, s. 6. Digitized by Microsoft® 6 & 7 Will. 4, c. 85. 317 registrar, upon being requested so to do by or on behalf of the party by whom the notice was given, shall issue under his hand a certificate in the form of schedule (B.) to tnis act annexed, provided that no lawful impediment he shown to the satisfaction of the superintendent registrar why such certificate should not issue, and provided that the issue of such certificate shall not have been sooner forbidden in manner hereinafter mentioned by any person or persons authorized in that behalf as hereinafter is provided ; and every such certificate shall state the particulars set forth in the notice, the day on which the notice was entered, and that the full period of seven days or of twenty-one days (as the case may be) has elapsed since the entry of such notice, and that the issue of such certificate has not been forbidden by any person or persons authorized in that behalf; and for every such certificate the superintendent registrar shall be entitled to have a fee of one shilling. VIII. And be it enacted, that the registrar-general shall Forms of cer- furnish to every superintendent registrar a sufficient number tificates tobe of forms of certificates, the cost of which shall be accounted urnls e ' for by the superintendent registrar to the registrar-general ; and in order to distinguish the certificates to be issued for Certificates marriages by licence from the certificates to be issued for S, 1 ]™^™ 16 marriages without licence, a watermark in the form of the to be distin- word '"licence," in Roman letters, shall be laid and manu- guishabie factured in the substance of the paper on which the certifi- certificates, cates to be issued for marriage by licence shalj be written or printed ; and every certificate to be issued for marriage by licence shall be printed with red ink, and every certificate to be issued for marriage without licence shall be printed with black ink, and such other distinctive marks between the two kinds of certificate shall be used from time to time as shall seem fit to the registrar-general. IX. And be it enacted, that any person authorized in that issue of su- behalf may forbid the issue of the superintendent registrar's registrar^ 611 ' certificate by writing at any time before the issue of such certificate certificate the word "forbidden" opposite to the entry of ??K be for " the notice of such intended marriage in the marriage notice book, and by subscribing thereto his or her name and place of abode, and his or her character, in respect of either of the parties, by reason of which he or she is so authorized; and in case the issue of any such certificate shall have been so forbidden the notice and all proceedings thereupon shall be utterly void. X. And be it enacted, that after the said first day of Consent. March the like consent shall be required to any marriage in England solemnized by licence as would have been required by law to marriages solemnized by licence immediately be- fore the passing of this act ; and every person whose con- sent to a marriage by a licence is required by law is hereby authorized to forbid the issue of the superintendent regis- trar's certificate, whether the marriage is intended to be by licence or without licence. XI. And be it enacted, that after the said first day of March Superintend- Digitized by Microsoft® 318 Appendix I. trar may grant li- cences for marriage. Superintend- ent regis- trar to give security. Proviso. Certificate to be given before the licence is granted. Caveat may be lodged with super- intendent registrar every superintendent registrar shall have authority to grant licences for marriage in any building registered as herein- after provided within any district under his superintendence, or in his office, in the form of schedule (C.) to this act an- nexed, and for every such licence shall be entitled to have of the party requiring the same the sum of three pounds above the value of the stamps necessary on granting such licence ; and every superintendent registrar shall four times in every year, on such days as shall be appointed by the registrar-general, make a return to the registrar-general of every licence granted by him since his last return, and of the particulars stated concerning the parties : provided always, that no superintendent registrar shall grant any such licence until he shall have given security by his bond in the sum of one hundred pounds to the registrar-general for the due and faithful execution of his office ; provided also, that nothing herein contained shall authorize any superintendent registrar to grant any licence for marriage in any church or chapel in which marriages may be solemnized according to the rites of the Church of England, or in any church or chapel belonging to the Church of England or licensed for the celebration of divine worship according to the rites and ceremonies of the Church of England, or any licence for marriage in any registered building, which shall not be within his district. XII. And be it enacted, that before any licence for mar- riage shall be granted by any such superintendent registrar one of the parties intending marriage shall appear personally before such superintendent registrar, and in case the notice of such intended marriage shall not have been given to such superintendent registrar, shall deliver to him the certificate of the superintendent registrar or superintendent registrars to whom such notice shall have been given, and such party shall make oath, or shall make his or her solemn affirmation or declaration instead of taking an oath, that he or she be- lieveth that there is not any impediment of kindred or alli- ance or other lawful hindrance to the said marriage, and that one of the said parties hath for the space of fifteen days immediately before the day of the grant of such licence had his or her usual place of abode within the district within which such marriage is to be solemnized, and where either of the parties, not being a widower or widow, shall be under the age of twenty-one years, that the consent of the person or persons whose consent to such marriage is required by law has been obtained thereto, or that there is no person having authority to give such consent, as the case may be ; and all such licences and declarations shall be respectively liable to the same stamp duties as licences for marriage granted by the ordinary of any diocese, and affidavits made in order to procure the same. XIII. And be it enacted, that any person, on payment of five shillings, may enter a caveat with the superintendent registrar against the grant of a certificate or a licence for the marriage of any person named therein ; and if any ca- Digitized by Microsoft® 6 & 7 Will. 4, c. 85. 319 veat be entered with the superintendent registrar, such ca- against grant veat being duly signed by or on behalf of the person who "ertSte. ' enters the same, together with his or her place of residence, and the ground of objection on which his or her caveat is founded, no certificate or licence shall issue or be granted until the superintendent registrar shall have examined into the matter of the caveat, and is satisfied that it ought not to obstruct the grant of the certificate or licence for the said marriage, or until the caveat be withdrawn by the party who entered the same ; provided that in cases of doubt it shall be lawful for the superintendent registrar to refer the matter of* any such caveat to the registrar-general, who shall decide upon the same : provided likewise, that in case of the superintendent registrar refusing the grant of the cer- tificate or licence, the person applying for the same shall have a right to appeal to the registrar-general, who shall thereupon either confirm the refusal or direct the grant of the certificate or licence. XIV. And be it enacted, that after the said first day of Marriages March no marriage after such notice as aforesaid, unless by "°, t '°„^ , • ^ v t e i ,iii • i J solemnized virtue ot a licence to be granted by the superintendent re- until after gistrar, shall be solemnized or registered iu England until twenty-one after the expiration of twenty-one days after the day of the enTrVof entry of such notice as aforesaid; and no marriage shall be notice unless solemnized by the licence of any superintendent registrar or by hcenci; - registered until after the expiration of seven days after the day of the entry of such notice as aforesaid. XV. And be it enacted, that whenever a marriage shall New notice not be had within three calendar months after the notice jjJJUr'th 1 shall have been so entered by the superintendent registrar, months. the notice and certificate, and any licence which may have been granted thereupon, and all other proceedings there- upon, shall be utterly void ; and no person shall proceed to solemnize the marriage, nor shall any registrar register the same, until new notice shall have been given, and entry made, and certificate thereof given, at the time and in the manner aforesaid. XVI. And be it enacted, that the superintendent's certifi- Superintend- cate, or in case the parties shall have given notice to the ™ a j. r 8 e ^ s r " ti _ superintendent of different districts, the certificate of each ficateor superintendent, shall be delivered to the officiating minister, |j cen< :? t0 if the marriage shall be solemnized according to the rites of to the 'person the Church of England ; and the said certificate or licence by or before shall be delivered to the registering officer of the people m a£Jf the - called Quakers for the place where the marriage is solem- solemnized, nized, if the same shall be solemnized according to the usages of the said people; or to the officer of a synagogue by whom the marriage is registered, if the sameflhall be solemnized ac- cording to the usages of persons professing the Jewish reli- gion ; and in all other cases shall be delivered to the registrar present at the marriage, as hereinafter provided. XVII. And be it enacted, that it shall be lawful for the Superintend- superintendent registrar of any union, parish, or place, sub- ™^"Sy" ject to the approval of the board of guardians thereof, to appoint re- Digitized by Microsoft® 320 Appendix I. gistrar of marriages. Places of worship may be regis- tered for solemnizing marriages therein. On removal of the same congregation the new place of wor- ship maybe immediately registered, instead of the one disused. appoint by writing under his hand such person or persons as lie may think fit, with such qualifications as the registrar- general, by any general rule, may declare to be necessary, to be a registrar or registrars for the purpose of being present at marriages to be solemnized by virtue of this act at which the presence of a registrar is made necessary, and every such registrar of marriages shall hold his office during the plea- sure of the superintendent registrar by whom he was ap- pointed, or of the registrar-general. XVIII. And be it enacted, that any proprietor or trustee of a separate building, certified according to law as a place of religious worship, may apply to the superinteifdent regis- trar of the district, in order that such building may be regis- tered for solemnizing marriages therein, and in such case shall deliver to the superintendent registrar a certificate, signed in duplicate by twenty householders at the least, that such building has been used by them during one year at the least as their usual place of public religious worship, and that they are desirous that such place should be registered as aforesaid, each of which certificates shall be countersigned by the proprietor or trustee by whom the same shall be deli- vered ; and the superintendent registrar shall send both cer- tificates to the registrar-general, who shall register such building accordingly in a book to be kept for that purpose at the general register office ; and the registrar-general shall indorse on both certificates the date of the registry, and shall keep one certificate with the other records of the general register office, and shall return the other certificate to the superintendent registrar, who shall keep the same with the other records of his office ; and the superintendent registrar shall enter the date of the registry of such building in a book to be furnished to him for that purpose by the registrar- general, and shall give a certificate of such registry under his hand, on parchment or vellum, to the proprietor or trustee by whom the certificates are countersigned, and shall give public notice of the registry thereof by adver- tisement in some newspaper circulating within the county and in the London Gazette ; and for every such entry, cer- tificate, and publication the superintendent registrar shall receive at the time of the delivery to him of the certificates the sum of three pounds. XIX. And be it enacted, that if at any time subsequent to the registry of any building for solemnizing marriages therein it shall be made to appear to the satisfaction of the registrar-general that such building has been disused for the public religious worship of the congregation on whose behalf it was registered as aforesaid, the registrar-general shall cause the registry thereof to be cancelled ; provided that if it shall be proved to the satisfaction of the registrar-general that the same congregation use instead thereof some other such building for the purpose of public religious worship, the registrar-general may substitute and register such new place of worship instead of the disused building although such new place of worship may not have been used for that Digitized by Microsoft® ) wit- nesses. 6 & 7 Will. 4, c. 85. 321 purpose _ during one year then next preceding ; and every application for cancelling the registry of any such building, or for such substitution and registry of a substituted build- ing, shall be made to the registrar-general by or through the superintendent registrar of the district ; and such cancel or substitution, when made, shall be made known by the registrar-general to the superintendent registrar, who shall enter the fact and the date thereof in the book provided for the registry of such buildings, and shall certify and publish such cancel or substitution and registry in manner herein- before provided in the case of the original registry of the disused building ; and for every such substitution the super- intendent registrar shall receive, at the time of the delivery of the certificate from the party requiring the substitution, the sum of three pounds ; and after such cancel or substitu- tion shall have been made by the registrar-general it shall not be lawful to solemnize any marriage in such disused building, unless the same shall be again registered in the manner hereinbefore provided. XX. And be it enacted, that after the expiration of the Marriages said period of twenty-one days, or of seven days if the mar- m *y be . riage is by licence, marriages may be solemnized in the i n suc j, re _ registered building stated as aforesaid in the notice of such gistered marriage, between and by the parties described in the notice [hlf presence and certificate, according to such form and ceremony as they of some re- may see fit to adopt: provided nevertheless, that every such gjstrar and marriage shall be solemnized with open doors, between the hours of eight and twelve in the forenoon, in the presence of some registrar of the district in which such registered building is situate, and of two or more credible witnesses : provided also, that in some part of the ceremony, and in the presence of such registrar and witnesses, each of the parties shall declare, " I do solemnly declare, that I know not of any lawful " impediment why I, A. B., may not be joined in " matrimony to C. D." And each of the parties shall say to the other, " I call upon these persons here present to witness that " I, A. B., do take thee, C. D., to be my lawful " weddpd wife [or husband]." Provided also, that there be no lawful impediment to the marriage of such parties. XXI. And be it enacted, that any persons who shall ob- Marriages ject to marry under the provisions of this act in any such ™^ b b f t d registered building may, after due notice and certificate before the issued as aforesaid, contract and solemnize marriage at the superintend- office and in the presence of the superintendent registrar ent re s istrar - and some registrar of the district, and in the presence of two witnesses, with open doors, and between the hours afore- said, making the declaration and using the form of words hereinbefore provided in the case of marriage in any such registered building. XXII. And be it enacted, that the registrar shall be entitled Marriage for every marriage which shall be solemnized under this act registrar. 6 p 5 Digitized by Microsoft® 322 Appendix I. Registrar to register all marriages solemnized before him in books to be sent by the registrar general. Copies of the marriage re- gister book to be given quarterly to the superin- tendent re- gistrar. Proof of residence of parties, or consent, not necessary to establish the marriage. Bishops, with consent of patrons, may license chapels for the solemni- zation of in his presence to hav.e from the parties married the sum of ten shillings, if the marriage shall he by licence, and other- wise the sum of five shillings. XXIII. And be it enacted, that the registrar shall forth- with register every marriage solemnized in manner aforesaid in his presence in a marriage register book to be furnished to him for that purpose from time to time by the registrar- general, according to the form provided for the registration of marriages by an act made in this present session of par- liament, intituled " An Act for registering Births, Deaths, and Marriages in England," the cost of which shall be de- frayed in like manner as the cost of providing register books of births and deaths (a); and every en try of such mar- riage shall be signed by the person by or before whom the marriage shall have been solemnized, if there shall be any such person, and by the registrar, and also by the parties married, and attested by two witnesses ; and every such entry shall be made in order from the beginning to the end of the book. XXIV. And be it enacted, that in every year, on such days as shall from time to time be appointed by the registrar- general, within one calendar month next after the first day of April, the first day of July, the first day of October, and the first day of January respectively, every registrar shall make and deliver to the superintendent registrar of his dis- trict a true copy, certified by him under his hand, according to the form of schedule (D.) to this act annexed, of all the entries of marriage in the register book kept by him since the last delivery, and the superintendent registrar shall verify the same, and, if found to be correct, shaH certify the same, under his hand, to be a true copy ; and if there shall have been no marriage registered since the delivery of the last certified copy, the registrar shall certify the fact, and such certificate shall be delivered to the superintendent registrar as aforesaid, and countersigned by him ; and the registrar shall keep safely the said register book until it shall be filled, and shall then deliver it to the superintendent registrar to be kept by him with the records of his office. XXV. And be it enacted, that after any marriage shall have been solemnized it shall not be necessary in support of such marriage to give any proof of the actual dwelling of either of the parties previous to the marriage within the dis- trict wherein such marriage was solemnized for the time required by this act, or of the consent of any person whose consent thereunto is required by law ; nor shall any evidence he given to prove the contrary in any suit touching the vali- dity of such marriage. XXVI. And whereas it is expedient that provision should be made, under proper restrictions, for relieving the inha- bitants of populous districts remote from the parish church, or from any chapel wherein marriages may be lawfully cele- brated according to the rites and ceremonies of the Church (a) 21 & 22 Vict. c. 25, >. 6. Digitized by Microsoft® 6 & 7 Will. 4, c. 85. 323 of England, from the inconvenience to which they may be marriages thereby subjected in the solemnization of their marriages : p" a *°|" llous be it therefore enacted, that, with the consent under the hand and seal of the patron and incumbent respectively of the church of the parish or district in which may be situated any public chapel, with or without a chapelry thereunto an- nexed, or any chapel duly licensed for the celebration of divine service according to the rites and ceremonies of the Church of England, or any chapel the minister whereof is duly licensed to officiate therein according to the rites and ceremonies of the Church of England, or without such con- sent after two calendar months' notice in writing given by the registrar of the diocese to such patron and -incumbent respectively, the bishop of the diocese may, if he shall think it necessary for the due accommodation and convenience of the inhabitants, authorize by a licence under his hand and seal the solemnization of marriages in any such chapel for persons residing within a district the limits whereof shall be specified in the bishop's licence, and under such provisions as to the amount, appropriation, or apportionment of the dues, and as to other particulars, as to the said bishop may seem fit, and as may be specified in the said licence ; pro- vided that it shall be lawful for any patron or incumbent who shall refuse or withhold consent to the grant of any such licence to deliver to the bishop, under his or her hand , and seal, a statement of the reasons for which such consent shall have been so refused or withholden ; and no such licence shall be granted by any bishop until he shall have inquired into the matter of such reasons ; and every instru- ment of consent of the patron and incumbent, or, if such consent be refused or withholden, a copy of the notice under the hand of the registrar, and every statement of reasons alleged as aforesaid by the patron or incumbent, with the bishop's adjudication thereupon under his hand and seal, shall be registered in the registry of the diocese; and thenceforth and until the said licence be revoked marriages solemnized in such chapel shall be as valid to all intents and purposes as if the same had been solemnized in the parish church, or in any chapel where marriages might heretofore have been legally solemnized. XXVII. And be it enacted, that all fees, dues, and other Appropria- emoluments on account of the solemnization of marriages on^m-tales which belong to the incumbent or clerk respectively of any performed in church or chapel in any parish or district within which the such chapels, solemnization of marriages shall be authorized as aforesaid shall respectively be received, until the avoidance of such church or chapel next after the passing of this act, for and on account of such incumbent, and until the vacancy in the office of clerk next after the passing of this act, for and on account of such clerk, and be paid over to them, except such portion of the fees, dues, or other emoluments as the said bishop of the diocese, with the consent of the said in- cumbent and clerk respectively, shall in such aforesaid licence assign to the minister and clerk respectively of the Digitized by Microsoft® 324 Appendix 1. Patron or incumbent may appeal to the arch- bishop against such licences. Notice of such licences to be affixed in chapels. Marriages performed in such chapels to be under the same regulations as those per- formed in parish churches. Option to parties to be married at parish church. Bishop, with consent of archbishop, may revoke such li- cences: chapel in which the solemnization of marriages shall be au- thorized as aforesaid ; and that it shall be lawful for the said bishop in and by such licence, without any such con- sent, to declare that from and after such next avoidance or vacancy respectively the whole or such part of the fees, dues, and other emoluments on account of the solemnization of marriages in such last-mentioned chapel as shall be spe- cified in such licence shall be receivable, and the same shall thenceforth be received by or for the minister and clerk of such chapel respectively. XXVIII. And be it enacted, that when the said bishop shall authorize the solemnization of marriages in any such chapel as aforesaid, without the consent under the hand and seal of the patron and incumbent respectively, it shall be lawful for them or either of them to appeal within one calendar month to the archbishop of the province, who shall hear the same in a summary manner, and shall make such order confirming, revoking, or varying the licence so given, as to him shall seem meet and expedient, which order shall be registered in the registry of the diocese, and shall be con- clusive and binding on all parties whatsoever. XXIX. And be it enacted, that there shall be placed in some conspicuous part in the interior of every chapel in re- spect of which such licence shall be given as aforesaid a notice in the words following : " Marriages may be solem- nized in this chapel." XXX. And be it enacted, that all provisions which shall from time to time be in force relative to marriages, and to providing, keeping, and transmitting register books and copies of registers of marriage solemnized in any parish church, shall extend to any chapel in which the solemniza- tion of marriages shall be authorized as aforesaid, in the same manner as if the same were a parish church, and every- thing required by law to be done relating thereto by the rector, vicar, curate, or churchwardens respectively of any parish church shall be done by the officiating minister, chapelwarden, or other person exercising analogous duties in such chapel respectively. XXXI. Provided always, and be it enacted, that notwith- standing any such licence as aforesaid to solemnize marriages in any such chapel, the parties may, if they think fit, have their marriage solemnized in the parish church, or in any chapel in which heretofore the marriage of such parties or either of them might have been legally solemnized. XXXII. And be it enacted, that any such licence or order may at any time be revoked by writing under the hand and seal of the bishop of the diocese, with the con- sent in writing of the archbishop of the province ; and such revocation and consent shall be registered in the re- gistry of the diocese, the registrar whereof shall notify the same in writing to the minister officiating in the chapel, and shall also give public notice thereof by advertisement in some newspaper circulating within the county and in the London Gazette, and thenceforth the authority to solemnize marriages in such chapel shall cease and determine. Digitized by Microsoft® 6 & 7 Will. 4, c. 85. 325 XXXIII. And be it enacted, that in case of the revoca- in which tion of the licence to solemnize marriages in any such chapel ^ r e s e t r ^^ 8 " all registers of marriages solemnized therein under such li- sen t t0 the cence which shall be in the custody or possession of the incumbent minister of such chapel at the time of such revocation shall "huJch^"'" 11 forthwith be transmitted to the incumbent or officiating minister of the parish church, and shall thenceforth be pre- served, and in all other respects dealt with in the same manner, and be of the same force and validity, to all intents and purposes, as if they had been originally made and depo- sited with such incumbent or officiating minister ; and that such incumbent or minister shall, when he next transmits to the superintendent registrar copies of the registers of mar- riages solemnized in such parish church, also therewith transmit copies of all such entries as shall have been made in such first-mentioned registers subsequent to the date of the last entry a copy whereof was transmitted to the super- intendent registrar, and shall also transmit to him one copy of every register book so transmitted to him of which no copy shall have been already transmitted to the superin- tendent registrar, having first signed his name at the foot of the last entry therein. XXXIV. And be it enacted, that the registrar of every dio- Registrars of cese shall within fifteen days after the said first day of March, aioc e>>es to and also within fifteen days after the first day of January in register every succeeding year, make out and send through the post office yearly office, directed to the registrar-general of births, deaths, and JjfnBe'dcha- marriages, at his office, a list of all chapels belonging to the pels within Church of England within that diocese wherein marriages ' D . eir dis " may lawfully be solemnized according to the rites and cere- monies of the Church of England, and shall distinguish in such list which have a parish, chapelry, or other recognized ecclesiastical division annexed to them, and which are chapels licensed by the bishop under this act, and shall state therein the district for which each of such chapels is licensed according to the description thereof in the licence; and the List of all registrar-general shall in every year make out and cause to c h ?P e . lsan d be printed a list of all such chapels, and also of all places of registered to public worship registered under the provisions of this act, De printed. and shall state in such list the county and registrar's district within which each chapel or registered building is situated, and shall add also the names and places of abode of the registrars and deputy registrars of each district, and of the superintendent registrars; and a copy of such list shall be sent to every registrar and superintendent registrar. XXXV. And be it enacted, that every marriage solem- Marriages nized under this act shall be good and cognizable in like under this manner as marriages before the passing of this act according nizabl^T to the rites of the Church of England. XXXVI. And be it enacted, that it shall be lawful for Registrar the registrar before whom any marriage is solemnized accord- ma y ? sk ing to the provisions of this act to ask of the parties to be tfcutars'of" married the several particulars required to be registered parties. touching- sucli marriage. Digitized by Microsoft® 326 Appendix I. Persons vexaliously entering caveat liable to costs and damages. Persons making false declarations, &c, guilty of perjury. Persons un- duly solem- nizing mar- riage guilty of felony. Superintend- ent regis- trars unduly issuing certi- ficates guilty of felony. XXXVII. And be it enacted, that every person who shall enter a caveat with the superintendent registrar against the grant of any licence or issue of any certificate on grounds which the registrar-general shall declare to be frivolous, and that they ought not to obstruct the grant of the licence, shall be liable for the costs of the proceedings and for da- mages to be recovered in a special action upon the case by the party against whose marriage such caveat shall have been entered. XXXVIII. And be it enacted, that every person who shall knowingly and wilfully make any false declaration or sign any false notice of certificate required by this act, for the purpose of procuring any marriage, and every person who shall forbid the issue of any superintendent registrar's certificate, by falsely representing himself or herself to be a person whose consent to such marriage is required by law, knowing such representation to be false, shall suffer the penalties of perjury. XXXIX. And be it enacted, that every person who after the said first day of March shall knowingly and wilfully solemnize any marriage in England, except by special licence, in any other place than a church or chapel in which marriages may be solemnized according to the rites of the Church of England, or than the registered building or office specified in the notice and certificate as aforesaid, shall be guilty of felony (except in the case of a marriage between two of the Society of Friends commonly called Quakers, according to the usages of the said society, or between two persons professing the Jewish religion, according to the usages of the Jews) ; and every person who in any such registered building or office shall knowingly and wilfully solemnize any marriage in the absence of a registrar of the district in which such registered building or office is situated shall be guilty of felony ; and every person who shall know- ingly and wilfully solemnize any marriage in England after the said first day of March (except by licence) within twenty-one days after the entry of the notice to the super- intendent registrar as aforesaid, or if the marriage is by licence within seven days after such entry, or after three calendar months after such entry, shall be guilty of felony. XL. And be it enacted, that every superintendent regis- trar who shall knowingly and wilfully issue any certificate for marriage after the expiration of three calendar months after the notice shall have been entered by him as aforesaid, or any certificate for marriage by licence before the expira- tion of seven days after the entry of the notice, or any certificate for marriage without licence before the expira- tion of twenty-one days after the entry of the notice, or any certificate the issue of which shall have been forbidden as aforesaid by any person authorized to forbid the issue of the registrar's certificate, or who shall knowingly and wilfully register any marriage herein declared to be null and void, and every registrar who shall knowingly and wilfully issue any licence for marriage after the expiration of three calendar Digitized by Microsoft® 6 & 7 Will. 4, c. 85. 327 months after the notice shall have been entered by the re- gistrar as aforesaid, or who shall knowingly and wilfully solemnize in his office any marriage herein declared to be null and void, shall be guilty of felony. XLI. And be it enacted, that every prosecution under Limitation this act shall be commenced within the space of three years ofprosecu- after the offence committed. XLII. And be it enacted, that if any persons shall know- Marriages ingly and wilfully intermarry after the said first day of March Y°y lif ! in - i il - • r *i_' * • i ^i xt_ ^i_ duly solem- under the provisions of this act, in any place other than the nizedwith church, chapel, registered building, or office or other place the know- specified in the notice and certificate as aforesaid, or without IfJlf f ° f both i»i ■ * > • • • parties ■ due notice to the superintendent registrar, or without certi- ficate of notice duly issued, or without licence, in case a licence is necessary under this act, or in the absence of a re- gistrar or superintendent registrar where the presence of a registrar or superintendent registrar is necessary under this act, the marriage of such persons, except in any case herein- after excepted, shall be null and void : provided always, that nothing herein contained shall extend to annul any marriage legally solemnized according to the provisions of an act passed in the fourth year of his late majesty George the Fourth, intituled " An Act for amending the Laws re- 4 Geo. 4, specting the Solemnization of Marriages in England." c ' 76 ' XLIII. And be it enacted, that if any valid marriage In cases of shall be had under the provisions of this act by means of marr j a g e s, any wilfully false notice, certificate, or declaration made by the guilty either party to such marriage, as to any matter to which a jy/aifpro-" notice, certificate, or declaration is herein required, it shall pertyaccru- be lawful for his majesty's attorney-general or solicitor-ge- ing from the neral to sue for a forfeiture of all estate and interest in any ^"gJo!'/ 8 property accruing to the offending party by such marriage ; c. 76. and the proceedings thereupon and consequences thereof shall be the same as are provided in the like case with regard to marriages solemnized by licence before the passing of this act according to the rites of the Church of England. XLIV. And be it enacted, that this act shall be taken to Provisions of be part of the said act for registering births, deaths, and mar- ^fn^d'to ' riages, as fully and effectually as if incorporated therewith, this Act. and that all the provisions and penalties of the said act re- lating to any registrar or register of marriages, or certified copies thereof, shall be taken to extend to the registrars and registers of marriages to be solemnized under this act, and to the certified copies thereof, so far as the same are appli- cable thereunto. XLV. And be it enacted, that this act shall extend only Extent of to England, and shall not extend to the marriage of any of Act - the royal family. [Schedules. Digitized by Microsoft® 328 Appendix I. * -a bDO -=•3 District and County in which the other Party resides when the Parties dwell in different Districts. 1 .0 e Church or Building in which Marriage is to be solemnized. ( Sion Chapel ) West Street, ] Hendon, [ Middlesex. S3 c 3 o> 1 a s e & e u K O CO C ft to a ft. to 6 1» K si £ ° 1 s c c u v. 13 1 s 6 a a , &-> as a •a S O CO CS s Digitized by Microsoft® 6 & 7 Will. 4, c. 85. 329 s\5 -a £ he; !=h .2 -C to — a: a c5 -"3 >• ° a .2 -o.S ~ as *° — .2 «* ^ 53 a ft! a ... O en s<~ a eo O ^ SB- « TJ.S *> S.a ° ^ B ° -a O S*'S ~~ 5 S'S —C/J Jj'S § "^ § ■so .2.2 fc. C t. a> . 2 S "3 •og = 03 -, -a «*■ s % — ~v -3 J) .. .2 !n b*^ X a: — ^ t. a; .™ s S"g -§ £ « 1 ° c I— I '-" § s a District and County in which the other Party dwells where the Parties dwell in different Districts. e 5*. Church or Building in which Marriage is to be solemnized. Sion Chapel, West Street, Stepney, Middlesex. 3(3 Si en e o S e K g k 1 bC .S ft Si IK s e o fcfl 1 o.o ■M.tS BO « n 1 e s o c o a u £ s 1 e is s CO CO ^60 s >> 2 ^s ^ /. *S a ^3 o OJ -G -^ ^ q3 -O rt ^2 cis 3 a QJ ^2 o -a JD a c ^5 O T3 S ^3 S OJ K o 0) rf o o 5^ C/J r5 ^3 EC » -S 3 ■3 '3 J3 P fi Digitized by Microsoft® 330 Appendix I. Schedule (C.) Licence of Marriage. A. B., superintendent registrar of , to C. D., of , and E. F., of , sendeth greeting. Whereas ye are minded, as it is said, to enter into a contract of marriage under the provisions of an act made jn the seventh year of the reign of his majesty king "William the fourth, intituled [here insert the title of this act], and are desirous that the same may be speedily and publicly solemnized ; And whereas you C. D. [or you E. F.~], have made and subscribed a declaration under your hand that you believe there is no impediment of kindred or alliance or other lawful hindrance to the said marriage, and that you C. D. [or E. F.~\, have [or has] had your [or his or her] usual place of abode for the space of fifteen days last past within the district of [ ], and that you C. D. [or E. F.], not being a widower [or widow], are [or is] under the age of twenty-one years, and that the consent of G. S., whose consent to your [or his or her] marriage is required by law, has been obtained thereto [or that there is no person haviner authority to give such consent] : I do hereby grant unto you full licence according to the authority in that be- half given to me by the said act, to proceed to solemnize such marriage, and to the registrar of the district of [here insert the name of the district in which the marriage is to be solemnized] to register such marriage according to law ; provided. that the said marriage be publicly solemnized in the presence of the said registrar and of two witnesses within three calendar months from the [here insert the date of the entry in the notice booh of the superintendent regis- trar], in the [here describe the building in which the mar- riage is to be solemnized], between the hours of eight and twelve in the forenoon. Given under my haud, this day of , one thousand eight hundred and (Signed) A. B., Superintendent registrar. Schedule (D.) I, John Cox, registrar of the district of Stepney, in the county of Middlesex, do hereby certify, that this is a true copy of the entries of marriage registered in the said district from the entry of the marriage of John Wood and Ann Simpson, number one, to the entry of the marriage of James Smith and Martha Green, number fourteen. Witness my hand this first day of July, 1837. (Signed) John Cox, Kegistrar. [The italics in this, schedule to be filled up as the case may be.] Digitized by Microsoft® 6 & 1 "Will. 4, c. 86. 331 6 & 7 Will. 4, c. 86. An Act for registering Births, Deaths, and Marriages, in England. [17th August, 1836.] Whereas it is expedient to provide the means for a com- plete register of the births, deaths, and marriages of his majesty's subjects in England ; And whereas an act passed in the fifty-second year of the reign of his late majesty king George the third, intituled " An Act for the better regu- 52 Geo. 3, lating Parish and other Begisters of Births, Baptisms, Mar- c - H6 - riages, and Burials in England, 1 ' and also an act passed in the fourth year of the reign of his late majesty king George the fourth, intituled "An Act for amending the Laws re- 4 Geo. 4, specting the Solemnization of Marriages in England," are c - K - insufficient for the purpose aforesaid : Be it therefore enacted So much of by the king's most excellent majesty, by and with the ad- recited Acts vice and consent of the lords spiritual and temporal, and registration commons, in this present parliament assembled, and by the of marriages authority of the same, that after the first day of March in re P ealed - the year one thousand eight hundred and thirty-seven so much of the said acts as relates to the registration of mar- riages shall be repealed. II. And be it enacted, that it shall be lawful for his ma- General re- jesty to provide a proper office in London or Westminster, to gistry office be called " The General Begister Office," for keeping a ^7™" register of all births, deaths, and marriages of his majesty's London or subjects in England, and to appoint for the said office under Y es f m , in " the great seal of the united kingdom a registrar-general of births, deaths, and marriages in England, and from time to time at pleasure to remove the said registrar-general, and appoint some other person in his room. VI. And be it enacted, that the registrar-general shall Annual ab- send once in every year to one of the principal secretaries of stract of state a general abstract of the number of births, deaths and be^laidbe- marriages registered during the foregoing year, in such fore par- form as the said secretary from time to time shall require ; llament - and every such annual general abstract shall be laid before parliament within one month after receipt thereof or after the meeting of parliament. VII. And be it enacted, that the guardians of every Districts to union declared under the provisions of an act passed in the 1>e f° rm . e[i . fifth and sixth years of his present majesty, intituled " An trars and Act for the Amendment and better Administration of the superintend- Laws relating to the Poor in England and Wales," and also Z^ztv-™* of every parish or place in which a board of guardians shall pointed. have been established under the provisions of the last-named 4 *L? wil1, *' act, shall, on or before the first day of October in this year, if the said board of guardians shall have been established before the passing of this act, or within three calendar months next after the establishment of the board, if the said board shall not have been established before the passing of (a) See 15 & 16 Vict. c. 25. Digitized by Microsoft® 332 Appendix I. Officers of unions, &c, being dis- missed by guardians, &c. to cease to act under this Act. Register offices to be provided in each union. Temporary registrars tliis act, divide the union or the parish or place of which they are the guardians into such and so many districts as they, subject to the approval of the registrar-general, shall think fit; and every such division when made shall be pub- lished by the guardians within the union, parish, or place of which they are the guardians, in such manner as the said registrar-general shall direct ; and every such district shall be called by a distinct name, and shall be a registrar's dis- trict; and the guardians shall appoint a person, with such qualifications as the registrar-general may by any general rule declare to be necessary, to be registrar of births and deaths within each district, and in every case of vacancy in the office of registrar shall forthwith fill up the vacancy ; and the clerk to the guardians of every such union, parish or place shall, if he shall think fit to accept such office, and have such qualifications as the registrar- general may by any general rule declare to be necessary, be the superintendent registrar thereof; and in the event of his refusal or disquali- fication to act in that capacity the guardians shall appoint a person, with such qualifications as the registrar-general may by any general rule declare to be necessary, to be the super- intendent registrar of each union, or of such parish or place, and in every case of vacancy of the office of superintendent- registrar shall forthwith fill up the vacancy ; and every registrar and superintendent registrar shall hold his office during the pleasure of the registrar-general VIII. Provided always, and be it enacted, that in every case in which the clerk to the guardians of any union, parish or place, or any other officer of any such union, parish or place, shall hold any office under this act, and shall be removed by the poor law commissioners from his office in such union, parish or place, and in every case in which any registrar or superintendent registrar shall be removed by the registrar-general from his office under this act, notice of such removal shall be forthwith given by advertisement in some newspaper circulating in the county wherein the district for which such officer may act shall be ; and every such person shall thenceforth cease to hold his office under this act, and shall be incapable of being re-appointed thereto : provided also, that the appointment of any officer of any such union, parish, or place to any office under this act shall be subject to the approval of the poor law commissioners, except as hereinbefore directed with respect to the clerk to guardians of any such union, parish or place. IX. And be it enacted, that the guardians shall provide and uphold, out of the monies coming to their hands or con- trol as such guardians, a register office, according to a plan to be approved by the registrar-general, for preserving the registers to be deposited therein, as hereinafter provided; and the care of the said office and the custody of the re- gisters deposited therein shall be given to the superintendent registrar of the union or parish or place having a board of guardians as aforesaid. X. And be it enacted, that the poor law commissioners for Digitized by Microsoft® 6 & 7 Will. 4, c. 86. 333 England and Wales shall, as soon as mav be after the said and superin- first day of October, form all the parishes, townships and g™ t d r ™' ™ " be places in England in or for which a board of guardians appointed shall not have been then established under the provisions of n or t pa n ' d shes the said act for the amendment of the laws relating to the Jh e Poor' poor into temporary districts, having regard in the forma- Law Act. tion thereof to the boundaries of parishes and townships, and shall appoint a registrar to each of such temporary districts, subject to being displaced as hereinafter provided ; and the registrar-general shall appoint a sufficient number of fit per- sons to be superintendent registrars for such temporary dis- tricts, subject to being displaced as hereinafter provided, and shall appoint the districts which each shall superintend. XL And be it enacted, that in every case in which a In case of board of guardians shall be established, under the provisions ^equent of the said act for the amendment of the laws relating to the yious ap?"" poor, in or for any parish, township, or place forming part pointments of any temporary district in or for which a registrar or super- C at e a Ta ~ inteudent registrar shall have been previously appointed as last aforesaid, and as soon as a registrar or registrars shall have been appointed for the districts into which the guar- dians shall have divided the union or parish or place of which they are guardians as aforesaid, and the clerk of the guardians of such union, parish, or place shall have ac- cepted the office of superintendent registrar, or the said guardians shall have appointed a superintendent registrar for such districts, in like manner as in the unions formed before the passing of this act, every such parish or place shall cease to be a part of the temporary district to which it was so an- nexed by the poor law commissioners, and every registrar, deputy registrar and superintendent registrar appointed be- fore the election of such board of guardians as aforesaid in or for such parish, township, or place shall cease to hold their respective offices, so far as relates to such parish, town- ship or place, unless re-appointed. XII. And be it enacted, that for every district for which Deputy a registrar of births and deaths shall be appointed by the registrars guardians as aforesaid the registrar shall have power, sub- pointed!" ject to the approval of such guardians, and for every dis- trict for which a registrar shall be appointed by the said poor law commissioners, such registrar shall have power, subject to the approval of such commissioners, to appoint by writing under his hand a fit person to act as his deputy in case of the illness or unavoidable absence of such registrar ; and every such deputy registrar whilst so acting shall have all the powers and duties, and be subject to all the pro- visions and penalties herein declared concerning registrars, and in case of the death of the registrar shall act as registrar until another registrar is appointed ; and every registrar shall be civilly responsible for the acts or omissions of his deputy. XIII. And be it enacted, that the appointments of regis- Appoint- trars, deputy registrars and superintendent registrars, and mentstobe Digitized by Microsoft® 334 Appendix I. exempt from stamp duties. Register boxes to be provided. All books, &c, to be transferred on removal of registrar. Registrar and deputy to dwell in the distriul, and their names and additions to be put on their dwell- ing-houses. the duplicates and certified copies of registers hereinafter mentioned, shall be exempt from all stamp duties. XIV. And be it enacted, that the registrar-general shall furnish to every superintendent registrar, for the use of the registrars under his superintendence, a sufficient number of strong iron boxes to hold the register books to be kept by such registrar, and every such box shall be furnished with a lock and two keys and no more ; and one of such keys shall be kept by the registrar, and the other key shall be kept by the superintendent registrar; and the register books of each district, while in the custody of the registrar and not in use, shall be always kept in the register box, and the register box shall always be left locked. XV. And be it enacted, that in every case in which any registrar or superintendent registrar shall be removed from or cease to hold the said office, all register boxes, keys, books, documents, and papers in his possession as such re- gistrar or superintendent registrar shall be given as soon as conveniently may be to his successor in office ; and if any person shall refuse to give up any 6uch box, key, books, documents, or papers in such case as aforesaid it shall be lawful for any justice of the peace for the county or other jurisdiction where such person shall be or reside, upon appli- cation made for that purpose, to issue a warrant under hi3 hand and seal for bringing such person before any two jus- tices of the peace for the said county or other jurisdiction, and upon such person appearing, or not being found, it shall be lawful for such justices to hear and determine the matter in a summary way ; and if it shall appear to the jus- tices that any such box, key, books, documents, or papers are in the custody or power of any such persons, and that he has refused or wilfully neglected to deliver the same, the said justices are hereby required to commit such offender to the common gaol or house of correction for the said county or jurisdiction, there to remain without bail until he shall have delivered up the same, or until satisfaction shall have been given in respect thereof to the person in whose custody the same ought to be ; and the said justices may grant a warrant to search for such box, key, books, documents or papers, as in the case of stolen goods, in any dwelling-house or other premises in which any credible witness shall prove upon oath before them that there is reasonable cause to suspect the same to be ; and the same when found shall be delivered to the person in whose custody they ought to be. XVI. And be it enacted, that every registrar and deputy registrar shall dwell within the district of which he is regis- trar or deputy registrar, and shall cause his name, with the addition of registrar or deputy registrar (as the case may be) for the district for which he shall be so appointed, to be placed in some conspicuous place on or near the outer door of his own dwelling-house; and the superintendent registrar shall cause to be printed and published in the districts which he shall superintend a list of the name and place of abode Digitized by Microsoft® 6 & 7 Will. 4, c. 86. 335 of every registrar and deputy registrar under his superin- tendence. XVII. And be it enacted, that the registrar-general shall Register cause to be printed on account of the said register office a p°*; 3 d ed be sufficient number of register books for making entries of all births, deaths, and marriages of his majesty's subjects in England, according to the forms of schedules (A.) (B.) (C.) to this act annexed ; and the said register books shall be of durable materials, and in them shall be printed upon each side of every leaf the heads of information herein required to be known and registered of births, deaths, and marriages respectively ; and every page of each of such books shall be numbered progressively from the beginning to the end, beginning with number one ; and every place of entry shall be also numbered progressively from the beginning to the end of the book, beginning with number one; and every entry shall be divided from the following entry by a printed line. XXX. And be it enacted, that the registrar-general shall Marriage furnish or cause to be furnished to the rector, vicar, or register curate of every church and chapel in England wherein mar- pr°wdea. be riages may lawfully be solemnized, and also to every person whom the recording clerk of the Society of Friends com- monly called Quakers, at their central office in London, shall from time to time certify in writing under his hand to the registrar-general to be a registering officer in England of the said society, and also to every person whom the pre- sident for the time being of the London committee of depu- ties of the British Jews shall from time to time certify in writing under his hand to the registrar-general to be the secretary of a synagogue in England of persons professing the Jewish religion, a sufficient number in duplicate of mar- riage register books, and forms for certified copies thereof, as hereinafter provided ; and the cost of all such books and forms shall be paid by the churchwardens and overseers of the parish or chapelry out of the monies in their hands as such churchwardens and overseers, or by the register- ing officer or secretary respectively to whom the same shall be furnished. XXXI. And be it enacted, that every clergyman of the Marriage Church of England, immediately after every office of matri- ™ g ? s,e ™. t0 mony solemnized by him, shall register in duplicate in two duplicate.' of the marriage register books the several particulars re- lating to that marriage according to the form of the said schedule (C); and every such registering officer of the Quakers, as soon as conveniently may be after the solemni- zation of any marriage between two Quakers in the district for which he is registering officer, and every such secretary of a synagogue, immediately after every marriage solemnized between any two persons professing the Jewish religion, of whom the husband shall belong to the synagogue whereof he is secretary, shall register or cause to be registered in du- plicate in two of the said marriage register books the several particulars relating to that marriage according to the form Digitized by Microsoft® 336 Appendix I. Certified copies of registers of births and deaths to be sent quar- terly, and the register books, when filled, to the superintend- ent registrar. Duplicates and certified copies of registers of marriages to be sent to superintend- ent registrar. of the said schedule (C.) ; and every such registering officer or secretary, whether he shall or shall not be present at such marriage, shall satisfy himself that the proceedings in rela- tion thereto have been conformable to the usages of the said society, or of the persons professing the Jewish religion, as the case may be ; and every such entry as hereinbefore is mentioned (whether made by such clergyman or by such registering officer or secretary respectively as aforesaid) shall be signed by the clergyman or by the said registering officer or secretary, as the case may be, and by the parties married, and by two witnesses, and shall be made in order from the beginning to the end of each book, and the number of the place of entry in each duplicate marriage register book shidl be the same. XXXII. And be it enacted, that in the months of April, July, October, and January, on such days as shall from time to time be appointed by the registrar-general, every registrar shall make, and deliver to the superintendent re- gistrar of his district, on durable materials, a true copy, cer- tified by him under his hand according to the form of sche- dule (D.) to this act annexed, of all the entries of births and deaths in the register book kept by him since the last certificate, the first of such certificates to be given in the month of July in the year one thousand eight hundred and thirty-seven, and to contain all the entries made up to that time ; and the superintendent registrar shall verify the same, and if found to be correct shall certify the same under his hand to be a true copy ; and if there shall have been no birth or death registered since the delivery of the last certi- ficate the registrar shall certify the fact, and such certificate shall be delivered to the superintendent registrar as aforesaid, and countersigned by him ; and the registrar shall keep safely each of the said register books until it shall be filled, and shall then deliver it to the superintendent registrar, to be kept by him with the records of his office. XXXIII. And be it enacted, that the rector, vicar, or curate of every such church and chapel, and every such re- gistering officer and secretary, shall, in the months of April, July, October, and January respectively, make and deliver to the superintendent registrar of the district in which such church or chapel may be situated, or which may be assigned by the registrar-general to such registering officer or secre- tary, on durable materials, a true copy certified by him under his hand of all the entries of marriages in the register book kept by him since the last certificate, the first of such certificates to be given in the month of July one thousand eight hundred and thirty-seven, and to contain all the entries made up to that time, and if there shall have been no marriage entered therein since the last certificate, shall certify the fact under his hand, and shall keep the said mar- riage register books safely until the same shall be filled ; and one copy of every such register book, when filled, shall be delivered to the superintendent registrar of the district in which such church or chapel may be situated, or which Digitized by Microsoft® 6 & 7 Will. 4, c. 86. 337 shall have been assigned as aforesaid to such registering officer or secretary, and the other copy of every such register book kept by any such rector, vicar, or curate, shall remain in the keeping of such rector, vicar, or curate, and shall be kept by him with the registers of baptisms and burials of the parish or chapelry within which the marriages registered therein shall have been solemnized ; and the other copy of every such register book of marriages among the people called Quakers, and among persons professing the Jewish religion respectively, shall remain under the care of the said people or persons respectively, to be kept with their other re- gisters and records, and shall, for the purposes of this act, be still deemed to be in the keeping of the registering officer or secretary for the time being respectively. XXXIV. And be it enacted, that every superintendent registrar shall four times in every year, on such days as shall be therefore named by the registrar-general, send to the registrar-general all the certified copies of the registers of births, deaths, and marriages which he shall have so received during the three calendar months next preceding such quarterly days of transmission respectively ; and if it shall appear, by interruption of the regular progression of numbers or otherwise, that the copy of any part of any book has not been duly delivered to him, he shall procure, as far as possible, consistently with the provisions of this act, that the same maybe remedied and supplied; and every such superintendent registrar shall be entitled to receive the sum of twopence for every entry in such certified copies ; and every superintendent registrar shall make out an account four times in every year of the number of entries in the certified copies sent to bim during the last quarter, and the certified copies so sent to the general registry office shall be thereafter kept in the said office in such order and manner as the registrar-general, under the direction of the secretary of state, shall thiuk fit, so that the same may be most readily seen and examined. XXXV. And be it enacted, that every rector, vicar, or curate, and every registrar, registering officer, and secretary, who shall have the keeping for the time being of any re- gister book of births, deaths, or marriages, shall at all rea- sonable times allow searches to be made of any register book in his keeping, and shall give a copy certified under his hand of any entry or entries in the same on payment of the fee hereinafter mentioned ; (that is to say,) for every search extending over a period not more than one year the sum of one shilling, and sixpence additional for every additional year, and the sum of two shillings and sixpence for every single certificate. XXXVI. And be it enacted, that every superintendent registrar shall cause indexes of the register books in his office to be made, and kept with the other records of his office ; and that every person shall be entitled at all reason- able hours to search the said indexes, and to have a certified copy of any entry or entries in the said register books under B. Q Superintend- ent regis- trars to send certified copies of registers to the general register office. Searches may be made, and certificates given by the persons keeping the registers. Indexes to be made at the superin- tendent re- gistrar's office, and persons allowed to search them. Digitized by Microsoft® 338 Appendix I. Indexes to be kept at general re- gister office, searches allowed, and certified copies given. CertiSed copies given at general registry office to be sealed. Fees for searches in the general register office to he accounted for to the exchequer. 4 & 5 W. 4, c. 15. Clergymen, frc. may ask parties mar- ried the particulars required. Penalty for wilfully giving false information. the hand of the superintendent registrar, on payment of the fees hereinafter mentioned ; (that is to say,) for every ge- neral search the sum of five shillings, and for every parti- cular search the sum of one shilling, and for every such certified copy the sum of two shillings and sixpence. XXXVII. And be it enacted, that the registrar-general shall cause indexes of all the said certified copies of the registers to be made and kept in the general register office ; and that every person shall be entitled, on payment of the fees hereinafter mentioned, to search the said indexes be- tween the hours of ten in the morning and four in the afternoon of every day, except Sundays, Christmas-day, and Good Friday, and to have a certified Copy of any entry in the said certified copies of the registers ; and for every general search of the said indexes shall be paid the sum of twenty shillings, and for every particular search the sum of one shilling, and for every such certified copy the sum of two shillings and sixpence, and no more, shall be paid to the registrar-general or such other officer as shall be appointed for that purpose on his account. XXXVIII. And be it enacted, that the registrar-general shall cause to be made a seal of the said register office, and the registrar-general shall cause to be sealed or stamped therewith all certified copies of entries given in the said office ; and all certified copies of entries purporting to be sealed or stamped with the seal of the said register office shall be received as evidence of the birth, death or mar- riage to' which the same relates, without any further or Other proof of such entry, and no certified copy purporting to be given in the said office shall be of any force or effect which is not sealed or stamped as aforesaid. XXXIX. And be it enacted, that every sum received under the provisions of this act by or on account of the registrar-general shall be accounted for and paid by the registrar-general, at such times as the lords commissioners of the treasury from time to time shall direct, into the bank of England, to the credit of his majesty's exchequer, according to the provisions of an act passed in the fourth and fifth years of his majesty, intituled ''An Act to regulate the Office of the Receipt of His Majesty's Exchequer at West- minster." XL. And be it enacted, that it shall be lawful for every clergyman of the Church of England who shall solemnize any marriage in England, and for every registering officer of the quakers, and every secretary of a synagogue, after the said first day of March, to ask of the parties married the several particulars herein required to be registered touching such marriage. XLI. And be it enacted, that every person who shall wil- fully make or cause to be made, for the purpose of being inserted in any register of birth, death, or marriage any false statement touching any of the particulars herein re- quired to be known and registered, shall be subject to the same pains and penalties as if he were guilty of perjury. Digitized by Microsoft® 6 & 7 Will. 4, c. 86. 339 XLII. And be it enacted, that every person who shall Penalty for refuse or without reasonable cause omit to register any mar- reei^e'ring riage solemnized by him, or which he ought to register, and births, every registrar who shall refuse or without reasonable cause deaths, ami omit to register any birth or death of which he shall have Srtatng or' had due notice as aforesaid, and every person having the injuring the custody of any register book, or certified copy thereof or of re s lsters - any part thereof, who shall carelessly lose or injure the same, or carelessly allow the same to be injured whilst in his keeping, shall forfeit a sum not exceeding fifty pounds for every such offence. XLIII. And be it enacted, that every person who shall Penaityfor wilfully destroy or injure, or cause to be destroyed or in- des , tr °3'! n . g i u • . . v. i i •/= i or falsifying jured, any such register book, or any part or certified copy register of any part thereof, or shall falsely make or counterfeit, or books, cause to be falsely made or counterfeited, any part of any such register book or certified copy thereof, or shall wil- fully insert or cause to be inserted in any register book or certified copy thereof any false entry of any birth, death or marriage, or shall wilfully give any false certificate, or shall certify any writing to be a copy or extract of any register book, knowing the same register to be false in any part thereof, or shall forge or counterfeit the seal of the register office, shall be guilty of felony. XLIV. Provided always, and be it enacted, that no Accidental person charged with the duty of registering any birth, death J rror LT.!2[d or marriage, who shall discover any error to have been com- mitted in the form or substance of any such entry, shall be therefore liable to any of the penalties aforesaid if within one calendar month next after the discovery of such error, in the presence of the parents of the child whose birth may have been so registered, or of the parties married, or of two persons attending upon any person in his or her last illness whose death may have been so registered, or in case of the death or absence of the respective parties aforesaid, then in the presence of the superintendent registrar and of two other credible witnesses who shall respectively attest the same, he shall correct the erroneous entry, according to the truth of the case, by entry in the margin, without any alteration of the original entry, and shall sign the marginal entry, and add thereunto the day of the month and year when such correction shall be made : provided also, that in the case of a marriage register he shall make the like marginal entry, attested in like manner, in the duplicate marriage register book to be made by him as aforesaid, and in every case shall make the like alteration in the certified copy of the register book to be made by him as aforesaid, or in case such certi- fied copy shall have been already made, provided he shall make and deliver in like manner a separate certified copy of the original erroneous entry, and of the marginal correction therein made. XLV. And be it enacted, that all fines and forfeitures by Recovery of this act imposed, unless otherwise directed, shall be re- penalties. covered before any two justices of the peace for the county, Q2 Digitized by Microsoft® 340 Appendix I. city or place, where the offence shall have happened, upon the information or complaint of any person ; and if on the conviction of the offender, either on his or her confession, or by the oath of any one or more credible witness or witnesses (which oath such justices are hereby empowered to admi- nister), such fines or forfeitures, with the costs of the con- viction, shall not be forthwith paid, the same shall be levied by distress and sale of the goods and chattels of the offender, by warrant under the hand and seal of such justices ; and for want of distress such justices may commit every such offender to the common gaol or house of correction for the county, city or place, where the offender shall be committed, without bail or mainprize, for any term not exceeding one calendar month, unless such fine or forfeiture, and all rea- sonable charges attending the recovery thereof, shall be sooner paid ; and one moiety of all such fines and forfeitures shall go to the person who shall inform and sue or prosecute for the same, and the other moiety shall go to the registrar- general, or to such other person as the lords commissioners of the treasury shall appoint, for the use of his majesty ; and no distress made by virtue of this act shall be deemed un- lawful, nor shall the party making the same be deemed a trespasser, on account of any defect or want of form in the summons, conviction or warrant of distress, or on account of any irregularity which shall be afterwards committed by the party distraining, but the person or persons aggrieved by such irregularity shall recover full satisfaction for the special damages sustained in an action on the case. Appeal. XLVI. And be it enacted, that in all cases where the sum adjudged to be paid on any such summary conviction shall exceed five pounds, any person convicted may appeal to the next court of general or quarter sessions which shall be holden not sooner than twelve days after the day of such conviction for the county or other district wherein the cause of complaint shall have arisen ; provided that such person shall give to the complainant a notice in writing of such appeal, and of the cause and matter thereof, within three days after such conviction, and seven clear days at the least before such sessions, and shall also either remain in custody until the sessions, or enter into a recognizance, with two sufficient sureties, before a justice of the peace, conditioned personally to appear at the said sessions, and to try such ap- peal, and to abide the judgment of the court thereupon, and to pay such costs as shall be by the court awarded ; a«d upon such notice being given, and such recognizances being entered into, the court at such sessions shall hear and determine the matter of the appeal, and shall make such order therein, with or without costs, to either party, as to the court shall seem meet, and in case of the dismissal of the appeal, or the affirmance of the conviction, shall order and adjudge the offender to be punished according to the conviction, and to pay such costs as shall be awarded, and shall, if necessary, issue process for enforcing such judg- ment. Digitized by Microsoft® 6 & 7 Will. 4, c. 86. 341 XL VII. And be it enacted, that no such conviction or No certiorari, adjudication made on appeal therefrom shall be quashed for want of form, or be removed by certiorari or otherwise into any of his majesty's superior courts of record, and no war- rant of commitment shall be held void by reason of any defect therein, provided it be therein alleged that the party has been convicted, and there be a valid conviction to sus- tain the same. XLVIII. And be it enacted, that the registrar-general Correspon- may receive and send by the general post from and to places den . c f of in England all letters and packets relating exclusively to "inerlue- the execution of this act free from the duty of postage, pro- latin s t0 this vided that such letters and packets as shall be sent to the fteeof be registrar-general be directed to the "registrar-general of postage, births, deaths, and marriages," at his office, and that all such letters and packets as shall be sent by the registrar- general shall be in covers, with the words " registrar-general of births, deaths, and marriages," printed on the same, and be sealed with the seal of the said register office, and be signed on the outside thereof under such words with the name of such person as the said registrar-general, with the con- sent of the lords commissioners of the treasury, or any three or more of them, shall appoint, in his own handwriting, (such name to be from time to time sent to the secretary of the general post office in London,) and under such other regulations as the said lords commissioners, or any three or more of them, shall think fit; and if the person so to be appointed shall subscribe or seal any letter or packet what- ever, except such only concerning which he shall receive the special direction of his superior officer, or which he shall himself know to relate exclusively to the execution of this act, or if the person so to be appointed, or any other person, shall send or cause to be sent under any such cover any letter, paper, or writing, or any inclosure, other than shall relate ex- clusively to the execution of this act, every person so offending shall forfeit and pay the sum of one hundred pounds, and be dismissed from his office ; one moiety of such penalty to be paid to the use of his majesty, his heirs and successors, and the other moiety to the use of the person who shall in- form or sue for the same; to be sued for and recovered in any of his majesty's courts of record at Westminster. XLIX. Provided always, and be it enacted, that nothing Registers of herein contained shall affect the registration of baptisms or baptisms and burials as now by law established, or the right of any i," kl p 8 t "s 7 officiating minister to receive the fees now usually paid for heretofore, the performance or registration of any baptism, burial, or marriage. L. And be it further enacted, that the said registrar-general Registrar- shall, within three calendar months after his appointment to general to such office, furnish to the respective guardians of every tl "™t„ no " union, parish, or place printed notices, which the said guar- guardians of dians shall, as soon as conveniently may be after the receipt "Sying' thereof, cause to be fixed or placed on the outside of the Acts re- Digitized by Microsoft® 342 Appendix I. quired to be several church and chapel doors, or other public and conspi- doneby cuous buildings or places, within their respective unions, gSerin?" parishes, or places, and which said notices shall specify the several acts required to be done by persons who may be desirous of solemnizing marriage, or of registering the birth of any -child or the death of any person, under the provi- sions of this act. [Schedules. Digitized by Microsoft® 6 & 7 Will. 4, c. 86. 343 .a 5= 03 m i-! P E o £ Si K H H Baptismal Name if added after Registration of Birth. Signature of Registrar. O-fc T3 e S 0) i? a 3 1 'ES„- d c c *>§ M!3 C 1121 s.sj M p- o 5J 1 .4 a ft 5! ■d o 5 u i-' a g S M CO o 1 1? 111 ^ S e 3 8 « a •a 53 CD CD Digitized by Microsoft® 344 Appendix I. R B W co w p w o Vi 8 g g'Si) •S'l Stf s«i i/l « V "Ed S u rfi a 1? Hi A wa E* „ c 8 .2^ , o 13 ■« Sg* £!s g c g fii psa »-. "£ "2 oT,2<2 in « d "rt P o u> 3 oi U si K M £ "2 P-I 1 bo < CO M CO 1 e 1,3 a> *6 *- tt s .0 n) 2 Jzj m s fe* 13 si 0) K (a ■3 s A * 6 ^ fc " d s 3 bo en Digitized by Microsoft® 6 & 7 Will. 4, e. 86. 345 "a * a, s <3 fin a & c 0,=i 1 3 £ «- 0) . 11 1 ^ O Sen ! P4 rf <5 iS ill aj S3 « "S 6) «"£ *. &. 7 « 25 CO Sg ^ -£ a CO S 9 . ^ *H ■"* s| Js M £ e 1 II 1 1 Fk tj K 1) 1 6 fq 6? ti e K a> s s bo < 1 tf ,. tS B s £3 S 3 "S S s « ■a ^ OB ~ 03 p* *Q O ."W^ r— j a rC£ ^3 * CJ r-C 1*1 (72 js e pE! ^ c KS^S it 1 ^•./^z CO CD 60 c CC S t3 B g » C3 a? ■a t. ^ co 92 JS o5 Digitized by Microsoft® 346 Appendix I. Schedule (D.) I John Cox, registrar of births and deaths in the district of Mary-le-bone, North, in the county of Middlesex, do hereby certify, that ths is a true copy of the registrar's book of births [or deaths] within the said district, from the entry of the birth [or death] of James Green, No. 1, to the entry of the birtli [or death] of William Strange, No. 34. Witness my hand this seventh Hay of March, 1838. John Cox, Registrar. Schedule (E.) I John Cox, registrar of births and deaths in the district of Mary-le-bone, North, in the county of Middlesex, do hereby certify, that the death of Henry Hastings was duly registered by me on the seventh day of March, 1836. Wit- ness my hand this eighth day of March, 1836. John Cox, Registrar. Schedule (F.) I James Smith, coroner for the county of Dorset, do hereby order the burial of the body now shown to the in- quest jury as the body of John Jones. Witness my hand this eighth day of March, 1836. James Smith, Coroner. Schedule (G.) I Gilbert Elliott, vicar of Harming in the county of Kent, do hereby certify, that I have this day baptized by the name of 'Thomas a male child, produced to me by Wil- liam Green as the son of William Green and Rebecca Green, and declared by the said William Green to have been born at Mary-le-bone in the county of Middlesex, on the seventh day of January, 1836. Witness my hand this first day of December, 1838. Gilbert Elliott, Vicar. [The words and figures in italics in the above schedules to be filled in as the case may be.] Digitized by Microsoft® ( 347 ) 19 & 20 Victoria, c. 119. An Act to amend the Provisions of the Marriage and Segistration Acts. [July 29th, 1856.] Whebeas an act was passed in the session holden in the sixth and seventh years of the reign of King William the Fourth, chapter eighty-five, intituled " An Act for Marriages e & 7 Will. 4, in England ;" and another act was passed in the first year c - 85 - of the reign of her majesty, chapter twenty-two, intituled "An Act to explain and amend Two Acts passed in the last l Vict. c. 22. Session of Parliament for Marriages, and for registering Births, Deaths, and Marriages in England ;" and another act was passed in the session holden in the third and fourth years of her majesty, chapter seventy-two, intituled "An 3&4Vict. Act to provide for the Solemnization of Marriages in the c - ?2 - District in or near to which the Parties reside:" And whereas it is expedient to alter and amend the provisions of the said recited acts, so far as is hereinafter provided : 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. In case of any party intending marriage under the Nonoticeof provisions of any of the said recited acts or of this act, no "/reader notice of such intended marriage shall be read or published published be- before the guardians of any poor law union or parish or '"^rdiansfor place, or be transmitted by any superintendent registrar to be trans- ' the clerk of any such guardians. mitted to the 2. In case any party shall intend marriage, under the pro- guardians" ' visions of any of the said recited acts or of this act, the party Every notice so intending marriage shall, at the time of giving to the of marriage superintendent registrar or respective superintendent regis- tobeaccom- trars, as the case may be, the notice required by the said solemn de- recited acts or either of them, make and sign or subscribe claration.by a solemn declaration in writing, in the body or at the foot of ™r tl ? e f s ' h that such notice, that he or she believes that there is no im- there is no pediment of kindred or alliance or other lawful hindrance to lawful hin- r, . . . ,ii • ^i - i ■ drance to the said marriage, and that the parties to the said marriage, 3UCh mar . in case the marriage is intended to be had without licence, riage, &c have, for the space of seven days immediately preceding the giving of such notice, had their usual place of abode and residence- within the district of the superintendent registrar or respective superintendent registrars to whom such notice or notices, as the case may be, shall be so given ; or, in case such marriage is intended to be had by licence, that one of the said parties hath for the space of fifteen days immediately preceding the giving of such notice had his or her usual place of abode and residence within the district of the superintendent registrar to whom such notice shall be so given ; and when either of the parties intending marriage, and not being a widower or widow, shall be under the Digitized by Microsoft® 348 Appendix I. Persons making "Wil- fully false declarations to surfer the penalties of perjury. Form of no- tice of mar- riage. Notice of marriage "without licence to be affixed in superintend- ent regis- trar's office. age of twenty-one years, the party making such declaration shall further declare that the consent of the person or persons whose consent to such marriage is by law required has been given, or (as the case may be) that there is no person whose consent to such marriage is by law required; and every declaration so made as aforesaid shall be signed and sub- scribed, by the party making the same, in the presence of the superintendent registrar to whom the notice of marriage containing such declaration is given, or in the presence of his deputy, or of some registrar of births and deaths or marriages for the district in which the party giving such notice resides, or of the deputy of such registrar, who shall respectively attest the same by adding thereto his name, description and place of abode; and no certificate or licence for marriage shall be issued or granted pursuant to any such notice as aforesaid unless the said notice be accompanied by such solemn declaration duly made and signed or subscribed and attested as aforesaid; and every person who shall knowingly or wilfully make and sign or subscribe any false declaration, or who shall sign any false notice for the pur- pose of procuring any marriage under the provisions of any of the said recited acts or this act, shall suffer the penalties of perjury. 3. Every notice of marriage which shall be given under the provisions of any of the said recited acts or of this act, after this act shall have come into operation, shall be in the form of schedule (A.) to this act annexed, or to the like effect ; and in every case where the marriage is intended to be had and solemnized under the provisions of the said recited act of the third and fourth years of her majesty, chapter seventy-two, such notice shall, in addition to the several particulars comprised in the said schedule, contain the declaration required to be made by one of the parties to such intended marriage, pursuant to the second section of the said last-mentioned act ; and the superintendent registrar, to whom any such notice of marriage shall be so given shall forthwith enter the particulars and the date thereof and the name of the party giving the same, into the marriage notice book ; and for every such entry the superintendent registrar shall be entitled to have a fee of one shilling. 4. In case any party shall intend marriage without licence under the provisions of any of the said recited acts or of this act, the superintendent registrar to whom notice of such intended marriage has been given shall cause the notice of marriage, or a true and exact copy thereof, as entered in the marriage notice book, under the hand of such superin- tendent registrar, to be suspended or affixed in some con- spicuous place in the office of the said superintendent registrar during twenty-one successive days next after the day of the entry of such notice in his " marriage notice book," before any marriage shall be solemnized in pur- suance of such notice, and after the expiration of twenty-one days next after the day of the entry of such notice in his Digitized by Microsoft® 19 & 20 Vict. c. 119. 349 "marriage notice book," the superintendent registrar shall issue under his hand, upon the request of the party giving such notice, a certificate in the form or to the effect of the certificate set forth in schedule (B.) to this act an- nexed, provided that in the meantime no lawful impediment to the issuing of such certificate be shown to the satisfaction of the same superintendent registrar, and provided the issue of such certificate shall not have been forbidden in the manner provided by either of the said firstly and secondly- recited acts by some person or persons authorized in that behalf; and every such certificate shall state the particulars set forth in the said notice, and the day on which the same notice was entered, and that the issue of such certificate has not been forbidden by any person or persons authorized in that behalf, and for every such certificate the superin- tendent registrar shall be entitled to have and receive a fee of one shilling ; and at any time within three calendar months next after the day of the entry of such notice the intended marriage may be solemnized under the authority of the said certificate ; and every superintendent registrar's certificate for marriage duly issued under the provisions of this act shall have the same force, validity and effect as the like certificate issued under the provisions of the said recited acts or either of them would have had in case this act had not been passed. 5. In case any party shall intend marriage by licence Notice of under the provisions of any of the said recited acts or of this marriage by act, notice of such intended marriage shall not be suspended not to be in the office of the superintendent registrar, but the party suspended giving the same shall state therein that such marriage is f the super- intended to be celebrated by licence. mtendent 6. In any case of marriage intended to be solemnized by re g ls trar. licence, under the provisions of either of the said two firstly In ca ? e of recited acts or of this act, between parties both of whom do jj 1 ™* y not dwell in the same superintendent registrar's district, it notice given shall not be required that notice of such intended marriage f n ' t * e d | n 1 { ,er " shall be given to more than one superintendent registrar, registrar of but a notice to the superintendent registrar of the district one district in which one of the parties so intending marriage resides nc i ent e EU " shall be sufficient ; and it shall not be required that the said notice shall state how long each of the said parties has resided in his or her dwelling place, but only how long the party residing in the district in which the notice is given has so resided. 7. In every case in which one of the parties intending Notice of marriage without licence, under the provisions of any of the marriage said recited acts or of this act, shall dwell in Ireland, the ^encemay party so dwelling in Ireland shall give notice in the form be given in there used in that behalf, or to the like effect, to the registrar lrela nd, if of the district in Ireland within which such party shall have parties re 6 dwelt for not less than seven days then next preceding, and side there, shall state therein the name and surname and the profession and condition and age of each of the parties intending mar- Digitized by Microsoft® 350 Appendix I. riage, and also the dwelling place of each of them, and the time, not being less than seven days, during which he or she shall have dwelt therein, and also the church or other building in which the marriage is to be solemnized, provided that if either party shall have dwelt in the place steted in the notice as his or her dwelling place more than one month it may be stated that he or she hath dwelt therein one month and upwards; and such notice shall be dealt with in the manner, and such certificate for marriage shall be given by such registrar in the mode, respectively prescribed in an act passed in the session holden in the seventh and eighth years of the reign of her present majesty, chapter eighty-one, intituled " An Act for Marriages in Ireland, and for regis- tering such Marriages," as amended by another act passed in the session holden in the ninth and tenth years of the same reign, chapter seventy-two, intituled "An Act to amend the Act for Marriages in Ireland, and for registering such Mar- riages," provided that in such case the certificate for marriage shall not be issued before the expiration of twenty-one days next after the day of the entry of such notice, as in the first of the said two last-mentioned acts is provided ; and from and after the issuing of such certificate the production of the same to any person duly authorized under the provisions of this act to solemnize a marriage shall be as valid and effectual for authorizing such person to solemnize such marriage as the production of a certificate for marriage of a superin- tendent registrar of a district in England would be under any or either of the said three firstly hereinbefore-recited acts, if the party giving such notice were resident within such district, and the other party to such intended marriage were also resident within another superintendent registrar's district in England ; and where marriages have since the passing of the said act for marriages in Ireland, and for registering such marriages, been solemnized in England between parties, one of whom was resident in Ireland, under certificates, of which one was the certificate of the registrar of the district in Ireland within which one of the parties had dwelt for not less thun seven days, and the other the certificate of the superintendent registrar of the district in England within which the other party had dwelt for not less than seven days, such marriages are hereby declared to be and to have been valid in the same manner as if the parties had been respectively resident for not less than seven days in the respective districts of two superintendent registrars in Eng- land, and like certificates had been issued by both such superintendent registrars. Certificate of 8. In every case in which one of the parties intending proclamation m a rr j a g- e without licence under the provisions of any of the of banns in .. °. , . . . ,, . r ,. . _ ■* Scotland as said recited acts or this act, shall dwell in Scotland, a certi- to party resi- ficate of proclamation of banns in Scotland under the hand equivalent to or ' tne session clerk of the parish in which such proclamation superintend- shall have been made shall, when produced to any person traVs certifl- ^"'^ aut horized under the provisions of this act to solemnize cate. Digitized by Microsoft® 19 & 20 Vict. c. 119. 351 a marriage, be as valid and effectual for authorizing such person to solemnize such marriage as the production of a certificate for marriage of a superintendent registrar of a district in England would be, under any or either of the said three tirst-recited acts, in reference to a party resident within such district. 9. Every superintendent registrar receiving notice of an in cases of intended marriage to be solemnized by licence as aforesaid carriage by I IC6T1CC CGX- shall, after the expiration of one whole day next after the tilioate'ofthe day of the entry of such notice in his "marriage notice notice thereof book," issue under his hand, upon the request of the party jjwh/sup'e" giving such uotice, a certificate in the form or to the effect intendent of the certificate set forth in the said schedule (B.) to this registrar (un- less tne msr-' act annexed, and also a licence to marry, provided that in r j a ge be for- the meantime no lawful impediment to the issuing of such bidden) and certificate be shown to the satisfaction of the same super- {^man-iage intendent registrar, and provided the issue of such certificate may be so- shall not have been forbidden in the manner provided by lemnized ' either of the said firstly and secondly-recited acts by some person or persons authorized in that behalf; and every such certificate shall state the particulars set forth in the said notice, and the day on which the same notice was entered, and that the issue of such certificate has not been forbidden by any person or persons' authorized in that behalf; and for every such certificate the superintendent registrar shall be entitled to have and receive a fee of one shilling : and at any time within three calendar months next after the day of the entry of such notice the intended marriage may be solemnized under the authority of the said licence ; .and every superintendent registrar's certificate and licence for marriage duly issued under the provisions of this act shall have the same force, validity and effect as the like certificate and licence issued under the provisions of the said recited acts or either of them would have had in case this act had not been passed. 10. The form of a licence for marriage so to be granted Form of as aforesaid to any party or parties, by the superintendent J^™^" 1 registrar of any district as aforesaid, shall be in the form or to the effect of the licence set forth in schedule (C.) to this act annexed ; and for every such licence the superintendent registrar granting the same shall be entitled to have and receive of the party requiring the same the sum of one pound ten shillings, over and above the amount paid for the stamps necessary on granting such licence. 11. No such marriage as aforesaid shall be solemnized in Mode of any such registered building without the consent of the «ol jmuizing minister or of one of the trustees, owners, deacons or ma- {J'^ffered nagers thereof, nor in any registered building of the Church buildings. of Rome without the consent of the officiating minister thereof, nor in any church or chapel of the United Church of England and Ireland without the consent of the minister thereof, nor in such latter case by any other than a duly qualified clergyman of the said united church, or with any Digitized by Microsoft® 352 Appendix I. Persons de- sirous may add the re- ligious cere- mony or- dained by the church. Superintend- ent registrar to whom notice is given may grant licence for marriage (under 3 & 4 Vict. c. 72), in a district in which neither of the parties resides. Superin- tendent re- gistrar may grant licence for marriage to he so- lemnized in registered building out of district other forms or ceremonies than those of the said united church, any statute or statutes to the contrary notwith- standing. 12. If the parties to any marriage contracted at the re- gistry office of any district conformably to the said recited acts or any of them, or to the provisions of this act, shall desire to add the religious ceremony ordained or used by the church or persuasion of which such parties shall be members to the marriage so contracted, it shall be competent for them to present themselves for that purpose to a clergyman or minister of the church or persuasion of which such parties shall be members, having given notice to such clergyman or minister of their intention so to do; and such clergyman or minister, upon the production of their certificate of marriage before the superintendent registrar, and upon the payment of the customary fees (if any), may, if he shall see fit, in the church or chapel whereof he is the regular minister, by himself or by some minister nominated by him, read or celebrate the marriage service of the persuasion to which such minister shall belong : provided always, that no mi- nister of religion who is not in holy orders of the United Church of England and Ireland shall under the provisions of this act officiate in any church or chapel of the United Church of England and Ireland ; but nothing in the reading or celebration of such service shall be held to supersede or invalidate any marriage so previously contracted, nor shall such reading or celebration be entered as a marriage among the marriages in the parish register : provided also, that at no marriage solemnized at the registry office of any district shall any religious service be used at such registry office. 13. When any marriage is intended to be solemnized between parties not of the Society of Friends, commonly called Quakers, or not professing the Jewish religion, by licence under the provisions of the before-recited act of the third and fourth years of her majesty, chapter seventy-two, in a registered building situated in a district within which neither of the parties resides, it shall be lawful for the super- intendent registrar to whom notice of such intended marriage shall have been given to grant to the party applying for the same a licence for such marriage to be solemnized in the registered building stated in such notice ; and every licence and certificate granted in pursuance of this enactment shall be as valid and effectual to all intents and purposes as if the same had been granted by the superintendent registrar of the district in which, the registered building wherein the marriage is intended to be solemnized is situated. 14. When any marriage is intended to be solemnized, under the provisions of any of the before-recited acts or of this act, in the usual place of worship of the parties so in- tending marriage, or one of them, and such place of worship shall be a registered building situated out of the district of their, his or her residence, it shall be lawful for the superin- tendent registrar or respective superintendent registrars to Digitized by Microsoft® 19&20 Vict. c. 119. 353 whom notice of such marriage shall have heen given to wherein the grant to the party applying for the same a licence or certifi- J^ es r " cate, as the case may he, for such marriage to be solemnized in the registered building stated in such notice, provided such building be situated not more than two miles beyond the limits of the district in which the notice of such marriage has been given, and the party giving notice of such marriage shall at the time of giving the same state therein, in addition to the description of the building in which the marriage is to be solemnized, that it is the usual place of worship of one of the parties, and shall also state the name of the party whose usual place of worship it is ; and every licence and certificate granted in pursuance of this enactment shall be as valid and effectual, to all intents and purposes, as if the same had been granted by the superintendent registrar or the district in which the registered building wherein the marriage is intended to be solemnized is situated. 15. The registrar general shall have power and he is Registrar hereby authorized from time to time to appoint, by writing general may under his hand, such person or persons as he may think fit, gStrars of with such qualifications as the said registrar general by any marriages ; general rule shall have declared to be necessary, to be a ment ^re'-'" registrar or registrars of marriages within the district of any gistrars of superintendent registrar ; and every appointment to be here- marriages by after made by any superintendent registrar of any person or e m registrars persons to be a registrar or registrars, for the purpose of to be subject being present at marriages to be solemnized under and by prJvalof the virtue of any or by either of the said recited acts or of this registrar act, shall be by writing under the hand of such superin- general. tendent registrar, and shall be subject to the approval of the registrar general. 16. Every registrar of marriages, already appointed or Registrar hereafter to be appointed, shall be and he is hereby em- of marriages powered, subject to the approval of the registrar general, to "deputy" appoint, by a writing under his hand, a fit person to be and to act as his deputy, in case of the illness or unavoidable absence of such registrar; and every such deputy, while so acting, shall have all the powers and duties and be subject to all the provisions and penalties in the said recited acts or any or either of them given, imposed and contained con- cerning registrars of marriages ; and every such deputy shall hold his office during the pleasure of the registrar by whom he was appointed, but shall be removable by the registrar general; and every registrar of marriages shall be civilly responsible for the acts and omissions of his deputy ; and in case any registrar of marriages shall die, or otherwise cease to hold his office, his deputy shall become the registrar of marriages in his place until the appointment of another re- fistrar of marriages shall have been made, and notified to im by the superintendent registrar or by the registrar general, and shall, while continuing such registrar, have the same powers and duties and be subject to the same pro- visions and penalties as any other registrar of marriages. Digitized by Microsoft® 354 Appendix I. Proof of the observance of this act and of the recited acts, matters not necessary to the validity of marriages. Penalty on making false declaration, or giving false notices. In case of fraudulent marriages, the guilty party to for- feit all pro- perty accru- ing fro i; the marriage, as in 4 Geo. 4, c. 76. Nothing to alter, &c. provisions of existing acts, except where at variance with this act. 17. After any marriage shall have been solemnized, under the authority of any of the said recited acts or of this act, it shall not be necessary in support of such marriage to give any proof of the actual dwelling or of the period of dwelling of either of the parties previous to the marriage within the district stated in any notice of marriage to be that of his or her residence, or of the consent to any marriage having been given by arty person whose consent thereto is required by law, or that the registered building in which any marriage may have been solemnized had been certified according to law as a place of religious worship, or that such building was the usual place of worship of either of the parties, nor shall any evidence be given to prove the contrary in any suit or legal proceedings touching the validity of such mar- riage ; and all marriages which heretofore have been or which hereafter may be had or solemnized, under the autho- rity of any of the said recited acts or of this act, in any building or place of worship which has been registered pur- suant to the provisions of the said act passed in the sixth and seventh years of his late majesty King William the Fourth, chapter eighty-five, but which may not have been certified as required by law, shall be as valid in all respects as if such place of worship had been so certified. 18. Any person who shall knowingly or wilfully make any false declaration or sign any false notice required by this act for the purpose of procuring any marriage, and every person who shall forbid the granting by any superintendent registrar of a certificate for marriage by falsely representing himself or herself to be a person whose consent to such mar- riage is required by law, knowing such representation to be false, shall suffer the penalties of perjury. 19. If any valid marriage shall be had, under the provi- sions of any of the said recited acts or this act, by means of any wilfully false declaration, notice or certificate made or obtained by either party to such marriage as to any matter in which a solemn declaration, notice or certificate is re- quired, it shall be lawful for her majesty's attorney-general or solicitor-general to sue for a forfeiture of all the estate and interest in any property accruing to the offending party by such marriage, and the proceedings thereupon and the consequences thereof shall be the same as are provided in the like case with regard to marriages solemnized by licence between parties under age according to the rites of the Church of England in the statute passed in the fourth year of the reign of his late majesty King George the Fourth, chapter seventy-six. 20. Except where the provisions of the said recited acts are expressly altered by or are at variance with the provisions of this act, nothing herein contained shall alter, repeal or affect, or be construed so as in any manner to alter, repeal or affect, any of the several provisions and clauses contained- in the same acts or any of them, but, except as aforesaid, the same provisions and clauses respectively shall be and remain Digitized by Microsoft® 19 &20 Vict. c. 119. 355 in full force and effect as if this act had not been passed ; and this act shall, except as aforesaid, be considered as in- corporated with the same provisions and clauses, and be eonstrued in connexion therewith ; provided that, save as hereinafter mentioned, none of the provisions of this act shall limit or alter, or be construed to limit or alter, the privileges of persons belonging to the Society of Friends, commonly called Quakers, or of persons professing the Jewish religion, or impose on either of such bodies any obligations beyond such as are enacted in either of the said recited acts. 21. Any marriage according to the usages of the Society of Friends, commonly called Quakers, or to the usages of persons professing the Jewish religion respectively, where the parties thereto are both members of the said society or both persons professing the Jewish religion respectively, may be solemnized by licence (which licence the superintendent registrar to whom notice of the intended marriage shall have been given is hereby authorized to grant, in the form or to the effect set forth in the said schedule (C.) to this act an- nexed), as effectually in all respects as if such marriage were solemnized after the issue of a certificate by such su- perintendent registrar in the manner provided by the said recited acts or any of them ; and the provisions in this pre- sent act contained in relation to the solemn declaration to be made by the parties intending marriage, and to the state- ment to be contained in the notice of such intended mar- riage that such marriage is intended to be celebrated by licence, and to the notice to be given of any such intended marriage by licence, and to the giving of certificates in the form or to the effect set forth in schedule (B.) to this act annexed, and to the fee and stamp to be paid for such licence, shall be applicable in all respects to every such marriage to be solemnized by licence according to the usages of the said society or to the usages of persons professing the Jewish religion respectively. 22. The registrar general shall furnish or cause to be fur- nished to the person whom twenty householders professing the Jewish religion, and .being members of the West London synagogue of British Jews, shall certify in writing under their hands to the registrar general to be the secretary of the West London synagogue of British Jews, and also to every person whom such secretary shall in like manner certify to be the secretary of some other synagogue of not less than twenty householders professing the Jewish religion, and being in connexion with the West London synagogue, and having been established for not less than one year, a suffi- cient number in duplicate of marriage register books and forms for certified copies thereof; and every secretary of a synagogue to whom such books and forms shall be furnished tinder this act shall perform the same duties in relation to the registration of marriages between persons professing the Jewish religion as under an act passed in the session of par- Marriages of Quakers or Jews may be solemnized by licence. Registrar general to furnish mar- riage register books and forms tueach certified se- cretary of a synagogue of British Jews. Digitized by Microsoft® 356 Appendix I. Marriages under this act good and cognizable. Recites the act of 15 &16 Vict. c. 36. Registrar general to allow searches to be made, and give extracts from the re- turns of cer- tified places of worship made to him thereto, on payment of specified fees. liament held in the sixth and seventh years of his late ma- jesty King William the Fourth, chapter eighty-six, intituled " An Act for registering Births, Deaths and Marriages in England," are to be performed by the secretary of a syna- gogue to whom marriage register books and forms for cer- tified copies thereof have been or shall be furnished under that act. 23. Every marriage solemnized under any of the said recited acts or of this act shall be good and cognizable in like manner as marriages before the passing of the first-recited act according to the rites of the Church of England. 24. And whereas in pursuance of an act passed in the session holden in the fifteenth and sixteenth years of her majesty, chapter thirty-six, intituled "An Act to amend the Law relating to the certifying and registering Places of Religious Worship of Protestant Dissenters," the registrars of the several dioceses and archdeaconries, and the clerks of the peace of the several counties, ridings, divisions, cities and boroughs in England and Wales, did, in the year one thousand eight hundred and fifty-two, make and transmit, as thereby required, to the registrar general of births, deaths and marriages in England, duly verified returns of all places within the limits of their respective jurisdictions which pre- vious to and up to the time of the passing of the last-men- tioned act had been certified according to law and registered or recorded as places of meeting for religious worship : and whereas the total number of such places of meetiug so re- turned to the said registrar general pursuant to the provisions of the said act is fifty-four thousand eight hundred and four, and it is expedient that, for facilitating the proof of such places having been duly certified and registered or recorded as aforesaid, the registrar general should be empowered by law to allow searches to be made in the said returns, and to give certified copies thereof and extracts therefrom : be it further enacted as follows : The registrar general, on payment to him of the several fees hereinafter mentioned, shall allow searches to be made in the returns so made to him as aforesaid, and shall give to any person demanding the same a .certified copy thereof or extract therefrom with respect to any place of meeting for religious worship contained therein ; and every such certified copy or extract shall be sealed or stamped with the seal of the general register office, and when so sealed or stamped as aforesaid, if tendered in evidence upon any trial or other judicial proceeding in any civil or criminal court, shall be received as evidence of the place of meeting therein men- tioned or described having been at the time in that behalf therein stated duly certified and registered or recorded as by law required, without any further or other proof of the same ; and the registrar general shall be entitled to demand and receive for every search in the said returns extending over a period of not more than ten years the sum of one shilling, and for every additional period of ten years the sum Digitized by Microsoft® 19&20 Vict. c. 119. 357 of sixpence, and the further 6um of two shillings and six- pence for every single certified copy or extract. 25. Save as herein expressly provided, this act shall not Act not to extend to Ireland or Scotland. Ireland and 26. This act shall come into operation on the first day of Scotland. January, one thousand eight hundred and fifty-seven, and commence- none of the provisions thereof shall take effect previous to mentofact. that day. [Schedules. Digitized by Microsoft® 358 Appendix I. SCHEDULES. Schedule (A.) Form of Notice of Marriage. To the superintendent registrar of the district of Hen- don, in the county of Middlesex. I, the undersigned James Smith, hereby give you notice, that a marriage is intended to be had without [or, by, as the case may be] licence within three calendar months from the date hereof between me and the other party herein named and described ; (that is to say,) District and County in which the Parties re- spectively dwell. Hendon, Middlesex. Tunbridge, Kent. Church or Building in which the Marriage is to be solemnized. Sion Chapel, West Street, Tunbridge, Kent. bCTJ c '£ O) to Seven or fif- teen days (as the case may be). More than a month. Hj ft bo .5 % Es Q 16, High Street, Hendon, Mid- dlesex. Grove Farm, Tunbridge, Kent. bo < Twenty-five years. Nineteen years. M C " o.S Ironmonger p .2 e o Widower. Spinster. j Is -a a James Smith ... Martha Green... Digitized by Microsoft® 19 & 20 Vict. c. 119. And I hereby solemnly declare, that I believe there is no impediment of kindred' or alliance or other lawful hindrance to the said marriage, and that I, the above-named James Smith, have for the space of fifteen days immediately pre- ceding the giving of this notice had my usual place of abode and residence [If the marriage is intended to be liad in a church or chapel of the Church of England insert in this space the following word, in the parish of , or in the ecclesiastical dis- trict of (as the case may be), and add the name of the parish or ecclesiastical district in which one of the parties resides] within the above-mentioned district of Hendon. [And I further declare, that I am not a minor under the age of twenty-one years, and that the other party herein named and described is not a minor under the age of twenty- one years. ( If one or both of the parties be under age these words must be expunged.)] (Or, as the case mag be,] And I further declare, that she [or Ij the said Martha Green, not being a widow [or widower], is [or am] a minor under the age of twenty-one years, and that the consent of George Kilpin, whose consent to her [or my] marriage is required by law, has been duly given and obtained thereto [or that there is no person whose consent to her [or my] marriage is by law required (as the case may be)]. And I make the foregoing declarations solemnly and de- liberately, conscientiously believing the same to be true, pursuant to the provisions of an act passed in the year of her majesty Queen Victoria, chapter , intituled " An Act to amend the Provisions of the Marriage and Registration Acts," well knowing that every person who shall knowingly or wilfully make and sign or subscribe any false declaration, or who shall sign any false notice for the purpose of procuring any marriage under the provisions of the said act above mentioned, or any of the several acts therein recited, shall suffer the penalties of perjury. In witness whereof I have hereunto set and subscribed my hand, this day of 18 . James Smith. Signed and declared by the above-named ) James Smith in the presence of > [Here let the witness attest the signature of the party giving the notice according to one or other of the following " examples :'' — ] 359 Example. Name of Witness. Description. Place of Abode. 1 John Cox Superintendent registrar of Hen- don district [or deputy super- intendent registrar of Hendon district]. Hendon, Middlesex. 2 Peter Green Registrar of marriages for the Hendon district. Hendon, Middlesex. Digitized by Microsoft® 360 Appendix I. Schedule (B.) Form of Superintendent Registrar's Certificate. I, John Cox, superintendent registrar of the district of Hendon, in the county of Middlesex, do hereby certify, that on the fifth day of January, 1857, notice was duly entered in the marriage notice book of the said district of the mar- riage intended between the parties hereinafter named and described, and of such marriage being intended to be solem- nized without [or by, as the case may be,~\ licence delivered under the hand of James Smith, one of the parties ; (that is to say,) C fl £ i >» - M 0> c3 "" 5 •" H ■ C oi bO . •S3 Distri Coun whic Parti spect dw #2 n CO tD SB -a — *r - - -«S«iO Churcl or Buildi in whic the Marri is to hi solemniz £ S 3 M K^f- og c . a> in S^ •5 5 "Si -a a* h cellor, or any Judge of the Superior Courts of Law at West- w ' ho ' to ' t minster, to act as Judge Ordinary of the said Court for Di- as judge vorce and Matrimonial Causes, and the Master of the Rolls, during ab- the Judge of the Admiralty Court, Lord Justice, Vice-Chan- j u n d c g Vordi- cellor, or Judge of the Superior Courts, shall, when so acting, nary. have and exercise all the jurisdiction, power and authority, which might have been exercised by the Judge Ordinary. 12. The Court for Divorce and Matrimonial Causes shall . hold its sittings at such place or places in London or Middle- ^e Court. e2 Digitized by Microsoft® 364 Appendix I. Altered by sex or elsewhere as her Majesty in council shall from time to "IW" time appoint. Seal of the *"*• e ^- l0r ^ Chancellor shall direct a seal to be made for Court. the said Court, and may direct the same to be broken, altered and renewed, at his discretion ; and all decrees and orders, or copies of decrees or orders, of the said Court, sealed with the said seal, shall be received in evidence. Officers of 14. The registrars and other officers of the principal regis- the Court. (ry of the Court of p robate sha n atten( i the .sittings of the Powers in- Court for Divorce and Matrimonial Causes, and assist in the 2i 6 & S 22 Vict, proceedings thereof, as shall be directed by the rules and c. 108, s. 4. orders under this act. Power to ad- 15. All persons admitted to practise as advocates or proc- T .°j at "jL bar " tors respectively in any Ecclesiastical Court in England, and of Ecciesias- a 'l barristers, attorneys and solicitors, entitled to practise in ticai and the Superior Courts at Westminster, shall be entitled to prac- Courts°to t' se ' n tne Court for Divorce and Matrimonial Causes ; and practise in such advocates and barristers shall have the same relative the Court. rank and precedence which they now have in the judicial committee of the privy council, unless and until her Majesty shall otherwise order. Sentence of 16. A sentence of judicial separation (which shall have the paration S ma e ff ect °f a divorce a mensd et thoro under the existing law, be obtained and such other legal effect as herein mentioned) may be ob- by husband tained, either by the husband or the wife, on the ground of adultery, &c. adultery or cruelty, or desertion without cause for two years and upwards. Application 17. Application for restitution of conjugal rights or for for restitu- judicial separation on any one of the grounds aforesaid may jugal rights De made by either husband or wife, by petition to the Court, or judicial or to any judge of assize at the assizes held for the county rnay'be'made in w hich the husband and wife reside or last resided toge- by husband ther, and which judge of assize is hereby authorized and re- °L w .'. fe by quired to hear and determine such petition, according to the Court, &c° rules and regulations which shall be made under the autho- Repeaied as r *ty °f this ae ' / ant ' ' ne Court or judge to which such peti- to the judges Hon is addressed, on being satisfied of the truth of the alle- 21 salV* 5 * g at ' ons therein contained, and that there is no legal ground c 108, s. 19. ' why the same should not be granted, may decree such resti- tution 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 : provided always, that any judge of assize to whom such petition shall be presented may refer the same to any of her Ma- jesty's counsel or serjeant-at-law named in the commission of assize or nisi prius, and such counsel or Serjeant shall, for the purpose of deciding upon the matter of such petition, have all the powers that any such judge would have liad by virtue of this act or otherwise. Repealed by 18. For the purpose of hearing and deciding all appli- 21 & 22 Vict, cations under the authority of this act, the judge of assize, 1 a- 19. or person nominated by him as aforesaid, shall be entitled to avail himself of the services of all officers, and use and exercise all powers and authorities which t/ie Court of assize Digitized by Microsoft® 20 & 21 Vict. c. 85. 365 may employ, use and exercise for the determination of causes and other matters now usually heard and decided by them respectively, and the said judge of assize or other person shall also for the purpose have and be entitled to exercise all the powers and authorities hereby given to the Court for the hearing and deciding applications made to it, and also the powers hereby given to the Court to make pro- vision touching the custody, maintenance, and education of children ; and every order made by any judge of assize or other person under the authority of this act, may, on the application of the person obtaining the same, be entered as an order of the Court, and when so entered shall have the same force and effect, and be enforced in the same manner, as if such order had been originally made by the Court. 19. The Court shall from time to time fix and regulate Repealed by the fees which shall be payable upon all proceedings under 21 & 22 Vict - any application to a Judge of Assize under this act ; and °' ■ a - ,9 - such fees shall be received in motley, for their own benefit, by the persons to whom or for whose use the same shall be directed to be paid. 20. Any order so entered as aforesaid may be reviewed, Repealed by and either altered or reversed on appeal to the Judge Ordi- sl ™ 22 X'f '" nary of the Court, but such appeal shall not stay the inter- ' ' mediate execution of the order, unless the Judge Ordinary shall so direct, who shall have power, if such appeal be dismissed or abandoned, to order the appellant to pay to the other party the full costs incurred by reason of such appeal. 21. A wife deserted by her husband may at any tifne Wifede- after such desertion, if resident within the metropolitan dis- sertedbyher trict, apply to a police magistrate, or if resident in the apply to a"" 7 country to justices in petty sessions, or in either case to the police magis- Court(a), for an order to protect any money or property t!ces fa pett" she may acquire by her own lawful industry, and property sessions for which she may become possessed of, after such desertion, pro'ectioE. 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 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 (a) Or to the Judge Ordinary, 21 & 22 Vict. u. 108, a. 6. Digitized by Microsoft® 366 Appendix I. See 21 & 22 Vict. c. 108, S3. 7, 8, 9, 10, and 27 & 28 Vict. c. 44. Court to act on principles of the Eccle- siastical Courts. Decree of separation obtained during the absence of husband or wife may be reversed. See also 21 & 22 Vict. c. 108, s. 8. Court may- direct pay- ment of ali- mony to wife or to her trustee. In case of judicial sepa- ration the wife to be considered a feme sole with respect to property she may ac- quire, &c. Extended by 21 8:22 Vict, c. 108, s. 7. 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 continuance thereof be and be deemed to have been, during such desertion of her, in the like position in all re- spects, 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 rplief on principles and rules which, in the opi- nion of the said Court, shall be as nearly as may be conform- able to the principles and rules on which the Ecclesiastical Courts have heretofore acted and given relief, but subject to the provisions herein contained, and to the rules and orders under this act. 23. Any husband or wife, upon the application of whose wife or husband, as the case may be, a decree of judicial separation has been pronounced, may, at any time thereafter, present a petition to the Court, praying for a reversal of such decree on the ground that it was obtained in his or her absence, and that there was 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 accord- ingly ; but the reversal thereof shall not prejudice or affect the rights or remedies which any other person would have had in case such reversal had not been decreed in respect of any debts, 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 ap- proved by the Court, and may impose any terms or restric- tions which to the Court may seem expedient, and may from time to time appoint a new trustee, if for any reason it shall appear to the Court expedient so to do. 25. In every case of a judicial separation the wife shall, from the date of the sentence and whilst the separation shall continue, be considered as a feme sole with respect to pro- perty 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 Digitized by Microsoft® 20 & 21 Vict. c. 85. 367 to when such cohabitation shall take place shall be held to her separate use, subject, however, to any agreement in writ- ing made between herself and her husband whilst separate. 26. In every case of a judicial separation the wife shall, Also, &t put- whilst so separated, be considered as a feme sole for the pur- fracTan^™" poses of contract, and wrongs and injuries, and suing and suing, 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 ali- mony 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, or 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 On adultery to the said Court, praying that his marriage may be dissolved, il^f™. on the ground that his wife has since the celebration thereof of husband, been guilty of adultery ; and it shall be lawful for any wife petition for to present a petition to the said Court, praying that her mar- of'mkni'age riage may be dis-olved, on the ground that since the celebra- maybepre- tion thereof her husband has been guilty of incestuous adul- £ented - tery, 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 & mensd 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 pur- as to "in- poses of this act, incestuous adultery shall be taken to mean cestuous adultery committed by a husband with a woman with whom, " ulter J- ' if his wife were dead, he could not lawfully contract mar- riage by reason of her being within the prohibited degrees of consanguinity or affinity: and bigamy shall be taken to mean marriage of any person, being married, to any other person during the life of the former husband or wife, whe- ther 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 Adulterer to petitioner shall make the alleged adulterer a co-respondent to spoken?" the said petition, unless on special grounds, to be allowed by the Court, he shall be excused from so doing ; and on every Maybe dis- petition presented by a wife for dissolution of marriage, the ™\ s t sedfrom Court, if it see fit, may direct that the person with whom the ' husband is alleged to have committed adultery be made a c. 108, s. n.' respondent ; and the parties, or either of them, may insist on cause may having the contested matters of fact tried by a jury, as be tried by a hereinafter mentioned. Jury- 29. Upon any such petition for the dissolution of a mar- Court to be riage, it shall be the duty of the Court to satisfy itself, so far j£" e s ^ °/ as it reasonably can, not only as to the facts alleged, but collusion. Digitized by Microsoft® 368 Appendix I. Dismissal of petition. Power to Court to pro- nounce de- cree for dis- solving marriage. Novr only a decree nisi in the first instance. See 23 & 24 Vict. c. 144, i. 7.. Alimony. See 29 & 30 Vict. c. 32, s. 1. Husband may claim damages from adulterer. also whether or no the petitioner has been in any manner accessory to or conniving at the adultery, or has condoned the same, and shall also 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 marriage been accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then and in any of the said cases the Court shall dismiss the said petition. 31. In case the Court shall he satisfied on the evidence that the case of the petitioner has been proved, and shall not find that the petitioner had been in any manner accessory to or conniving at the adultery of the other party to the mar- riage, 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 mar- riage been guilty of adultery, or if the petitioner shall, in the opinion of the Court, have been guilty of unreasonable delay in presenting or prosecuting such petition, or of cruelty to- wards 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 ueglect or misconduct as has con- duced to the adultery. 32. The Court may, if it shall think fit, on any such decree, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it shall deem reasonable, and for that purpose may refer it to any one of the conveyancing counsel of the Court of Chancery to settle and approve of a proper deed or in- strument to be executed by all necessary parties ; and the said Court may in such case, if it shall see fit, suspend the pro- nouncing of its decree until such deed shall have been duly executed ; and upon any petition for dissolution of marriage the Court shall have the same power to make interim orders for payment of money, by way of alimony or otherwise, to the wife, as it would have in a suit instituted for judicial separation. 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 petitioner, and such petition shall be served on the al- leged adulterer and the wife, unless the Court shall dispense Digitized by Microsoft® 20 & 21 Vict. c. 85. 369 with such service, or direct some other service to be substi- tuted : 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 con- tained 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 ver- dict 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 Power to alleged adulterer shall have been made a co-respondent, and |j !o l lrtt j the adultery shall have been established, it shall be lawful for terer to pay the Court to order the adulterer to pay the whole or any costs. part of the costs of the proceedings. 35. In any suit or other proceeding for obtaining a judicial Power to separation or a decree of nullity of marriage, and on any SaS orders petition for dissolving a marriage, the Court may from time as to custody to time, before making its final decree, make such interim of children, orders, and may make such provision in the final decree, as Extended to it may deem just and proper with respect to the custody, d'ecree^^by maintenance and education of the children the marriage of 22 8c 23 Vict, whose parents is the subject of such suit or other proceeding, Ci 61 > s - *• and may, if it shall think fit, 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 Questions of act it shall be lawful for, but, except as hereinbefore pro- JSedbetere vided, not obligatory upon, the Court to direct the truth the Court, 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 Where a rules and orders upon the sheriff or any other person for 2 r u a e e s r t e™ to s be procuring the attendance of a special or common jury for the tried a jury trial of such question as may now be made by any of the ma y>>esu m - r* r* n r, t , ... . i moned as in Superior Courts of Common Law at Westminster, and may theCominon also make any other orders which to such Court or judge Law Courts. may seem requisite ; and every such jury shall consist of persons possessing the like qualifications, and shall be struck, summoned, ballotted 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 E5 Digitized by Microsoft® 370 Appendix I. Rights to challenge. Such ques- tion to be reduced into writing, and a jury to be swoin to try it. Judge to have same powers as at Nisi Prius. Bill of ex- ceptions, special ver- dict, and special case. Court may direct issues to try any fact. Affidavit in support of a petition. Service of petition. Examination of petitioner. 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 Matri- monial Causes shall be returned into such Court without any- writ of error or other writ ; and the matter of law in every such bill of exceptions, special verdict, and special case shall be heard and determined by the full Courts, subject to such right of appeal as is hereinafter given in other cases. 40. It shall be lawful for the Court to direct one or more issue or issues to be tried in any Court of Common Law, and either 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, hie an affidavit verifying the same so far as he or she is able to do so, and stating that there is not any collusion or connivance between the deponent and the other party to the marriage. 42. Every such petition shall be served on the party to be affected thereby, either within or without her Majesty's dominions, in such manner as the Court shall by any general or special order from time to time direct, and for that pur- pose the Court shall have all the powers conferred by any statute on the Court of Chancery : provided always, that the said Court may dispense with such service altogether in case it shall seem necessary or expedient so to do. 43. The Court may, if it shall think fit, order the 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. Digitized by Microsoft® 20 & 21 Vict. c. 85. 3?1 44. The Court may from time to time adjourn the hearing Adjoum- of any such petition, and may require further evidence ment ' thereon, if it shall see fit so to do. Court may 45. In any case in which the Court shall pronounce a l rde I s |"'t" f r. ..... . (. i i ,. i mentor pro- sentence of divorce or judicial separation tor adultery of the perty for ■Wife, if it shall be made appear to the Court that the wife is ? eneflt of entitled to any property either in possession or reversion, it partyfand shall be lawful for the Court, if it shall think proper, to children of order such settlement as it shall think reasonable to be made f^"'! ^23 of such property or any part thereof, for the benefit of the Vict. c. 61, innocent partv, and of the children of the marriage, or either s 5 . and oranyot'them. »*»™- 46. Subject to such rules and regulations as may be esta- Mode of Wished as herein provided, the witnesses in all proceedings taking before the Court where their attendance can be had shall be evidenoe - 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 the Court, be subject to be cross-examined by or on behalf of the oppo- site party orally in open Court, and after such cross-exami- nation may be re-examined orally in open Court as aforesaid by or on behalf of the party by whom such affidavit was filed. 47. Provided, that where a witness is out of the jurisdic- Court may tion of the Court, or where by reason of his illness, or from "sue corn- other circumstances, the Court shall not think fit to enforce giveorders the attendance of the witnesses in open Court, it shall be forexamina- lawful for the Court to order a commission to issue for the nes™^ abroad examination of such witness on oath, upon interrogatories or unable to or otherwise ; or if the witness be within the jurisdiction of a "end. the Court, to order the examination of such witness on oath, upon interrogatories or otherwise, before any officer of the said Court, or other person to be named in such order for the purpose ; and all the powers given to the Courts of Law at Westminster by the acts of the thirteenth year of King George the Third, chapter sixty-three, and of the first year of Kiug William the Fourth, chapter twenty-two, for en- abling the Courts of Law at Westminster to issue commis- sions and give orders for the examination of witnesses in actions depending in such Courts, and to enforce such exa- mination, and all the provisions of the said acts, and of any other acts for enforcing or otherwise applicable to such exa- mination and the witnesses examined, shall extend and be applicable to the Court and to the examination of witnesses under the commissions and orders of the said Court, and to the witnesses examined, as if such Court were one of the Courts of Law at Westminster, and the matter before it were an action pending in such Court. fvWenc f ' 48. The rules of evidence observed in the Superior common 1 " Courts of Common Law at Westminster shall be appli- Law Courts cable to and observed in the trial of all questions of fact 'e r ved. b ' See in the Court. also 22 & 23 Vict. c. 61, .6. Digitized by Microsoft® 372 Appendix I. Attendance of witnesses on the Court. Penalties for (alse evidence. Enforcement of orders and decrees. Power to make rules, &c. for pro- cedure, and to alter them from time to time. Fees to be regulated. Appeal from the Judge Ordinary to the full C ourt. Apppal to the House of Lords in case of petition 49. The Court may, under its seal, issue writs of subpoena or subpcena (luces tecum., commanding the attendance of wit- nesses 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 obe- dience thereto, in the same manner as if it had been a writ of subpcena or subpcena 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 : provided that any petitioner required to be exa- mined, or any person called as a witness or required or de- siring to make an affidavit or deposition under or for the purposes of this act, shall be permitted to make his solemn affirmation or declaration instead of being sworn in the cir- cumstances and manner in which a person called as a witness or desiring to make an affidavit or deposition would be per- mitted so to do under the "Common Law Procedure Act, 1854," in cases within the provisions of that act. 50. All persons wilfully deposing or affirming falsely in auy 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. The Court on the hearing of any suit, proceeding or petition under this act, and the House of Lords on the hear- ing of any appeal under this act, may make such order as to costs as to such Court or House respectively may seem just ; provided always, that there shall be no appeal on the subject of costs only. 52. All decrees and orders to be made by the Court in any suit, proceeding or petition to be instituted under authority of this act shall be enforced and put in execution in the same or the like manner as the judgments, orders and decrees of the High Court of Chancery may be now enforced and put in execution. 53. The Court shall make such rules and regulations con- cerning the practice and procedure under this act as it may from time to time' consider expedient, and shall have full power from time to time to revoke or alter the same. 54. The Court shall have full power to fix and regulate from time to time the fees payable upon all proceedings before it, all which fees shall be received, paid and applied as herein directed : provided always, that the said Court may make such rules and regulations as it may deem neces- sary 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 afore- said, may be made by the Judge Ordinary alone, may, within three calendar months after the pronouncing thereof, appeal therefrom to the full Court, whose decision shall be final. 56. Either party dissatisfied with the decision of the full Court on any petition for the dissolution of a marriage may, within three months after the pronouncing thereof, appeal Digitized by Microsoft® 20 & 21 Vict. c. 85. 373 therefrom to the House of Lords if parliament be then (^j," 01 "' sitting, or if parliament be not sitting at the end of such marriage. three months, then within fourteen days next after its meet- Extended to ing ; and on the hearing of any such appeal the House of ^"s 22 Vict Lords may either dismiss the appeal or reverse the decree, or c. los, s. 17,' remit the case to the Court, to be dealt with in all respects as j^'J"^ 1 "' the House of Lords shall direct. vict. c. m, 57. When the time hereby limited for appealing against s. 3. any decree dissolving a marriage shall have expired, and Liberty to no appeal shall have been presented against such decree, marryaeain 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, n clergy- that no clergyman in holy orders of the United Church of man c °m- England and Ireland shall be compelled to solemnize the solemnize marriage of any person whose former marriage may have certain been dissolved on the ground of his or her adultery, or shall ma mages. be liable to any suit, penalty or censure for solemnizing or refusing to solemnize the marriage of any such person. 58. Provided always, that when any minister of any if minister of church or chapel of the United Church of England and a »y church, Ireland shall refuse to perforin such marriage service be- ^perform* tween any persons who but for such refusal would be entitled marriage to have the same service performed in such church or chapel, ceremony, such minister shall permit any other minister in holy orders minister may of the said united church, entitled to officiate within the perform such diocese in which such church or chapel is situate, to perform semce - such marriage service in such church or chapel. 59. After this act shall have come into operation no ? 0! 5 cti j n f in action shall be maintainable in England for criminal con- criminal versation. conversation. 60. None of the fees payable under this act, except as ah fees, herein expressly provided, shall be received in money, but hereinbefore every such fee shall be collected and received by a stamp provided, to denoting the amount of the fee which, would otherwise be be collected payable; and the fees to be so collected by stamps shall be y stalnps - " stamp duties," and be under the management of the com- missioners of inland revenue. 61. The provisions contained in or referred to by an act Provisions of the present session of parliament, " to amend the laws concerning relating to probates and letters of administration in Eng- the'court'of land," and applicable to the collection and payment and Probate to be accounts of the fees to be received thereunder by means of the 1 purposes stamps, and to such stamps, and the vellum, parchment or of this Act. paper on or to which the same shall be impressed or affixed, and in relation to documents which ought to have stamps impressed thereon or affixed thereto, and to the punishment of persons for such wrongful acts as therein mentioned in relation to stamps, or fees or sums of money which ought to be collected by means of stamps, shall be applicable to and for the purposes of this act, as if such provisions as aforesaid had been contained or referred to in this act with reference Digitized by Microsoft® 374 Appendix I. Expenses of the Court to .be paid out of monies to b,e provided by Parlia- ment. Stamp duty on admission of proctors, and annual certificates. Compen- sation to proctors. to the like matters, and the Court under this act had been mentioned, instead of the Court of Probate, or the judge thereof, as the case may be. 62. It shall be lawful for the commissioners of her Ma- jesty's treasury, out of such monies as may be provided and appropriated by parliament for the purpose, to cause to be paid all necessary expenses of the Court under this act, and other expenses which may be incurred in carrying the pro- visions of this act into effect, except as herein otherwise provided. 63. The same amount of stamp duty as is now payable on the admission of a proctor to any Ecclesiastical Court shall be payable by every person to be admitted as a proctor in the Court of Divorce and Matrimonial Causes, or in the Court of Probate, who shall not have been previously ad- mitted as a proctor in the other of such Courts, or in an Ecclesiastical or Admiralty Court, and have paid the stamp duty in respect thereof; and every person who shall practise as a proctor or as a solicitor or attorney in the said Court of Divorce and Matrimonial Causes, or the said Court of Pro- bate, shall obtain an annual certificate to authorize him so to do, under the stamp duty acts, in the same manner as proctors practising in the Ecclesiastical or Admiralty Courts, and solicitors and attorneys practising in her Majesty's Courts at Westminster, are now required to do by the said acts or any of them, and shall be subject and liable to the same penalties and disabilities in case of any Deglect to ob- tain such certificates as such proctors, attorneys and soli- citors are now subject and liable to for any similar neglect, and as if the clauses and provisions of the said acts in rela- tion to such certificates had been inserted in this act, and specially enacted in reference to proctors, solicitors and attorneys practising in the said Court of Divorce and Matri- monial Causes and Court of Probate, provided that one an- imal certificate only shall be required for any one person, although he may practise in more than one of the capacities aforesaid, or in several of the Courts hereinbefore men- tioned. 6-t. Every person who at the time of the passing of this act has been duly admitted and is practising as a proctor in any Ecclesiastical Court in England shall, at the expiration of two years from and after the commencement of this act, be entitled to make a claim for compensation to the com- missioners of her Majesty's treasury; and the said commis- sioners, by examination of evidence on oath (which they are hereby empowered to administer), or otherwise, as they shall think fit, shall inquire into and ascertain the loss, if any, of professional gains and profits in respect of suits relating to marriage and divorce sustained by such proctors respectively, upon a comparison in each case of the average clear gains of the three years immediately before the com- mencement of this act, arising from such last-mentioned business, and the average of the same gains during the two years immediately succeeding the commencement of this Digitized by Microsoft® 20 & 21 Vict. c. 85. 375 «ct; and the said commissioners shall in each case, having regard to all the circumstances, award a reasonable com- pensation, by way of annuity, to the persons sustaining such loss, during their lives, but in no case shall such an- nuity exceed one half of the annual loss so ascertained as aforesaid ; and such annuities shall be paid out of monies to be annually provided by Parlixment for that purpose, and the persons receiving the same shall be subject to the provi- sions contained in the nineteenth section of the act of fourth and fifth William the Fourth, chapter twenty-four. 65. In case the Judge of the Court of Probate established As to salary by any act passed during the present session shall be ap- £„J" t d &f 0f pointed Judge Ordinary of the Court for Divorce and Ma- Probate, if trimonial Causes, the salary of such judge shall be the sum appointed of five thousand pounds per annum ; but such judge, if courfof afterwards appointed Judge of the Admiralty Court, shall Divorce, &c. not be entitled to any increase of salary. 66. Any one of her Majesty's principal secretaries of g° w |;I t0 f state may order every judge, registrar or other officer of any state to Ecclesiastical Court in England or the Isle of Man, or any order all other person having the public custody of or control over records"**".'' any letters patent, records, deeds, processes, acts, proceed- tobetrans- ings, books, documents or other instrument relating to ™['' e d . fr0 . m marriages, or to suits for divorce, nullity of marriage, resti- astical tution of conjugal rights, or to any other mutters or causes Courts, matrimonial, except marriage licences, to transmit the same, at such times and in such manner, to such places in London or Westminster, and under such regulations as the said secretary of state may appoint; and if any judge, registrar, Penalty on officer, or other person shall wilfully disobey such order he disobeying shall for the first offence forfeit the sum of one hundred suc order ' pounds, to be recoverable by any registrar of the Court of Probate as a debt under this act in any of the Supeiior 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 exceeding three ca- lendar 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 pro- Rules, &c, cedure, or fixing or regulating fees, which may be made by ' obeli »d the Court under this act, shall be laid before both Houses of liament. 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. The Judge Ordinary of the Court for Divorce and Yearly ao- Matrimonial Causes for the time being shall cause to be pre- f° e u . nt & ° f t0 pared in each year ending December thirty-one a return of be laid before all fees and monies levied in such year on account of the fee Parliament. fund of the Court for Divorce and Matrimonial Causes, and of any other fund under the authority of this act; also, a return of the annual salaries of the said Judge Ordinary, and Digitized by Microsoft® 376 Appendix I. of all persons holding offices in the said Court, with all the. incidental expenses of the said Court, whether the salaries and incidental expenses aforesaid be defrayed out of fees or out of any other monies; also, a return of all superannua- tions, pensions, annuities, retiring allowances, and compen- sations made payable under this act, in each year, stating the gross amount, and the amount in detail, of such charges: provided always, that all such returns as aforesaid shall be presented to both Houses of Parliament on or before the thirty-first day of March in each year, if Parliament is then sitting, and if Parliament is not sitting, then such returns shall be presented within one month of the first meeting of Parliament after the thirty-first day of March in each year. 20 & 21 Vict, c. 85. The Judge Ordinary of the Court for Divorce and Matrimonial Causes may sit in chambers. The treasury to cause chambers to be provided. Powers of judge when sitting in chambers. The regis- trars to do all acts hereto- fore done by surrogates. Evidence on which di- vorce ob- 21 & 22 Victoria, c. 108. An Act to amend the Act of the Twentieth and Twenty-first Victoria, chapter Eighty-five. [2nd August, 1858.] Whereas in the last session of parliament an act was passed, intituled " An Act to amend the Law relating to Di- vorce and Matrimonial Causes in England:" and whereas it is expedient to amend 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 com- mons, in this present parliament assembled, and by the au- thority of the same, as follows: 1. It shall be lawful for the Judge Ordinary of the Court for Divorce and Matrimonial Causes for the time being, to sit in chambers for the despatch of such part of the business of the said Court as can, in the opinion of the said Judge Ordinary, with advantage to the suitors, be heard in cham- bers; and such sittings shall from time to time be appointed by the said Judge Ordinary. 2. The commissioners of her Majesty's treasury shall from time to time provide chambers in which the said Judge Ordi- nary shall sit for the despatch of such business as aforesaid, and until such chambers are provided, the said Judge Ordi- nary shall sit in chambers in any room which he may find convenient for the purpose. 3. The said Judge Ordinary, when so sitting in chambers, shall have and exercise the same power and jurisdiction in respect of the business to be brought before him as if sitting in open Court. 4. The registrars of the principal'registry of the Court of Probate shall be invested with and shall and may exercise with reference to proceedings in the Court for Divorce and Matrimonial Causes the same power and authority which surrogates of the 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. 5. In every cause in which a sentence of divorce and sepa- ration from bed, board, and mutual cohabitation has been Digitized by Microsoft® 21 & 22 Vict. c. 108. 377 given by a competent Ecclesiastical Court before the act of tained prior the twentieth and twenty-first Victoria, chapter eighty-five, vie ° c. Is came into operation, the evidence in the case in which such may be used sentence was pronounced in such Ecclesiastical Court may, i, '»w™' ' whenever from the death of a witness or from any other fhe'eourt for cause it may appear to the Court reasonable and proper, be Divorce and received on the hearing of any petition which may be pre- c a u™ onlal sented to the said Court for Divorce and Matrimonial Causes. 6. Every wife deserted by her husband, wheresoever resi- wives de- dent in England, may, at any time after such desertion, apply ?£ r t ed h by _ to the said Judge Ordinary for an order to protect any money bands may or property in England she may have acquired or may apply to the acquire by her own lawful industry, and any property she j,"^ e t o an may have become possessed of, or may become possessed of protect pro- after such desertion, against her husband and his creditors, P ert '.' * c - and any person claiming under him ; and the Judge Or- them, dinar}' shall exercise in respect of every such application all the powers conferred upon the Court for Divorce and Matri- monial 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 Provisions act of the twentieth and twenty-first Victoria, chapter respecting eighty-five, respecting the property of a wife who has ob- ^ifeto ex- tained a decree for judicial separation or an order for protec- tend to pro- tion, shall be deemed to extend to property to which such j""^™^.* •wife has become or shall become entitled as executrix, admi- ecmrix, &c nistratrix, 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 ad- ministratrix. 8. In every case in which a wife shall under this act, or order for under the said act of the twentieth and twenty-first Victoria, protection of chapter eighty-five, have obtained an order to protect her ?™fvftobe' earnings or property, or a decree for judicial separation, such deemed order or decree shall, until reversed or discharged, so far as valld - necessary for the protection of any person or corporation who shall deal with the wile, 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, con- tracts, or acts of the wife incurred, entered into, or done between the times of the making such order or decree, and of the discharge, variation, or reversal thereof; and property of or to which the wife is possessed or entitled for an estate in remainder or reversion at the date of the desertion or decree (as the case may be) shall be deemed to be included in the protection given by the order or decree. 9. Every order which shall be obtained by a wife under Order to the said act of the twentieth and twenty -first Victoria, \^^ e chapter eighty-five, or under this act, for the protection of -which the her earnines or property, shall state the time at which the desertion P r r j * . commenced. desertion in consequence whereof the order is made coni- Digitized by Microsoft® 378 Appendix I. Indemnity to corporations, &c. making payments under orders afterwards reversed. "Where alleged adulterer a co-respon- dent, Court may order him to be dismissed from the suit. Persons who administer oaths under 20&21 Vict, c. 77, to administer tinder 20 & 21 Vict. c. 85. Bills of proctors, attornies, &c. to be subject to taxation. Power to enforce decree as to costs. raenced; and the order shall, as regards all persons dealing with such wife in reliance thereon, be conclusive as to the time when such desertion commenced. 10. All persons and corporations who shall, in reliance on any such order or decree as aforesaid, make any payment to, or permit any transfer or act to be made or done by, the wife who has obtained the same shall, notwithstanding such order or decree may then have been discharged, reversed or varied, or the separation 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 pay- ment, 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 pay- ment, 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 separa- tion. 11. In all cases now pending, or hereafter to be com- menced, 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. Registrars, surrogates, commissioners for taking oaths in the Court of Chancery, and all other persons now or here- after authorized to administer oaths under the Act of the twentieth and twenty-Hrst Victoria, chapter seventy-seven, or under this act, shall have power to administer oaths under the act of the twentieth and twenty-first Victoria, chapter eighty-five. 13. The bill of any proctor, attorney, or solicitor, for liny fees, charges, or disbursements in respect of any business transacted in the Court for Divorce and Matrimonial Causes, and whether 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 Ma- trimonial Causes, and the registrars of the principal registry of the Court of Probate, shall respectively, in any case where an Ecclesiastical Court having matrimonial jurisdic- Digitized by Microsoft® 21 & 22 Vict. c. 108. 379 tion 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 origi- nally 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 Judge to Matrimonial Causes shall have and exercise, over proctors, e ™ r f"'„ , i- . . . . ' I ,., power and solicitors, and attormes practising in the said Court, the like authority authority and control as is now exercised by the judges of over proctors, any Court of equity or of common law over persons practising therein as proctors, solicitors, or attornies. 16. It shall be lawful for the Judge Ordinary of the Court Commission- for Divorce and Matrimonial Causes to appoint, by commis- crs may be sion under seal of the Court, any persons practising as soli- fife l»le of™ citors in the Isle of Man, in the Channel Islands, or any of Man, &c. them, to administer oaths, and to take declarations or affir- mations, to be used in the said Court : and such persons shall be entitled from time to time to charge and take such fees as any other persons performing the same duties in the Court for Divorce and Matrimonial Causes may charge and take. 17. Whereas doubts may be entertained whether the right Appeal in of appeal given by the act of the twentieth and twenty-first cases of Victoria, chapter eighty-five, section fifty-six, extends to rnarriage to sentences on petitions for nullity of marriage: be it enacted lie to the and declared, that either party dissatisfied with any such Lords! ° f sentence may appeal therefrom in the same manner, within the same time, and subject to the same regulations as affect appeals against sentences on petitions for the dissolution of marriage. 18. Where any trial shall have been had by a jury before Judge the full Court or before the Judge Ordinary, or upon any ° r a y'g"nt issue directed by the full Court or by the Judge Ordinary, rule nisi for it shall be lawful for the Judge Ordinary, subject to any new trial, &c rules to be hereafter made, to grant a rule nisi for a new trial, but no such rule shall be made absolute except by the full Court. 19. So much of the act of the twentieth and twenty-first so much of Victoria, chapter eighty-five, as authorizes application to be 2 c ° ^ 2 ^J, ct " made for restitution of conjugal rights or for judicial separa- applications tion by petition to any judge of assize, and as relates to the to judges of proceedings on such petition, shall be and the same is hereby ^^.^ repealed. 20. In cases where it is necessary to obtain affidavits, Affidavits declarations, or affirmations to be used in the Court for ^bTswoA" 1 Divorce and Matrimonial Causes from persons residing in when parties foreign parts out of her Majesty's dominions, the same may making them be sworn, declared, or affirmed before the persons em- foreign parts. Digitized by Microsoft® 380 Appendix I. Affidavits, before whom to be sworn. Persons forging seal or signature guilty of felony. powered to administer oaths under the act of the sixth of George the Fourth, chapter eighty-seven, or under the act of the eighteenth and nineteenth of Victoria, chapter forty- two ; provided that in places where there are no such persons as are mentioned in the said acts, such affidavits, declara- tions, or affirmations may be made, declared, and affirmed 'before any foreign local magistrate or other person having authority to administer an oath there. 21. Affidavits, declarations, and affirmations to be used in the Court for Divorce and Matrimonial Causes may be sworn and taken in Scotland, Ireland, the Isle of Man, the Channel Islands, or any colony, island, plantation, or place out of England under the dominion of her Majesty, before any Court, judge, notary public, or person lawfully autho- rized to administer oaths in such country, colony, island, plantation, or place respectively, or, so far as relates to the Isle of Man and the Channel Islands, before any commissary, ecclesiastical judge, or surrogate who at the time of the passing of the act of last session, chapter seventy-seven, was authorized to administer oaths in the Isle of Man or in the Channel Islands respectively ; and all registrars and other officers of the Court for Divorce and Matrimonial Causes shall take judicial notice of the seal or signature, as the case may be, of any such judge, notary public, or person, which shall be attached, suspended, or subscribed to any such affidavit, declaration, or affirmation, or to any other document. 22. If any person shall forge any such seal or signature as last aforesaid, or any seal or signature impressed, affixed, or subscribed under the provisions of the said act of the sixth of George the Fourth, or of the said act of the eighteenth and nineteenth of Victoria, to any affidavit, declaration, or affirmation to be used in the Court for Divorce and Matri- monial Causes, or shall tender in evidence any such docu- ment as aforesaid with a false or counterfeit seal or signature thereto, knowing the same to be false or counterfeit, he shall be guilty of felony, and shall upon conviction be liable to penal servitude for the term of his life, or for any term not less than seven years, or to be imprisoned, with or without hard labour, for any term not exceeding three years nor less than one year ; and whenever any such document has been admitted in evidence by virtue of this act, the Court or the person who has admitted the same may, at the request of any party against whom the same is so admitted in evidence, direct that the same shall be impounded, and be kept in the custody of some officer of the Court or other proper person, for such period and subject to such conditions as to the said Court or person shall seem meet : and every person charged with committing any felony under this act may be dealt with, indicted, tried, and, if convicted, sentenced, »nd his offence may be laid and charged to have been committed, in the county, district, or place in which he may be apprehended or be in custody ; and every accessory before or after the fact to any such offence may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence laid and charged to Digitized by Microsoft® 22 & 23 Vict. c. 61. 381 have been committed, in any county, district, or place in which the principal offender may be tried. 23. Any person who shall wilfully give false evidence, or Persons who shall wilfully swear, affirm, or declare falsely, in any tak'ngafaise affidavit or deposition made under the authority of this act a surrogate before any surrogate having authority to administer oaths guilty of under the act of the twentieth and twenty-first Victoria, ^i^y- chapter seventy-seven, or before any person who before the passing of the said act was a surrogate authorized to ad- minister oaths in any of the Channel Islands, or before any person authorized to administer oaths under this act, shall be liable to the penalties and consequences of wilful aud corrupt perjury. — • — 22 & 23 Victoria, c. 61. An Act to make further provision concerning the Court for Divorce and Matrimonial Causes. [13th August, 1859.] Whereas it is expedient to make further provision con- cerning "The Court for Divorce and Matrimonial Causes," established by the act of the session holden in the twentieth 20 &21 Vict, and twenty-first years of her Majesty, chapter eighty-five: c - 8S - 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 parlia- ment assembled, and by the authority of the same, as follows : 1. In addition to the judges mentioned in section eight Judges of of the said act, all the. judges for the time being of the the Queen's Courts of Queen's Bench, Common Pleas, and Exchequer to™ Judges respectively, not already made judges of the Court for of the Court Divorce and Matrimonial Causes, shall be judges of such forD " v orce. Court. 2. The Judge Ordinary of the said Court, and eight or judge more of the other judges thereof, shall, from, time to time, Ordinary and by general orders for this purpose, appoint so many sittings ^f ler ju dg e 9 of the full Court in every year, and at such times as may to appoint appear to them necessary or convenient for disposing of the ' f*jf'' V n if* matters arising in the said Court which may not be heard court. and determined by the Judge Ordinary alone ; and the Repealed by judges of the said Court' shall, by a rota or otherwise, as 23 *^ 4Vict - they may deem most convenient, make provision for the °' ' s ' 4 " attendance of the requisite number of judges to make a full Court at the times so appointed for the sittings of the full Court. 3. The Judge Ordinary shall have place and precedence Precedence in the said Court next after the Lord Chief Baron of her f rd '? n i a ' r udge Majesty's Court of Exchequer. r lnaly ' 4. The Court after a final decree of judicial separation, The Court nullity of marriage, or dissolution of marriage, may upon may make application (by petition) for this purpose make, from time to custody^:" time, all such orders and provision with respect to the cus- children tody, maintenance, and education of the children the mar- decree of 31 riage of whose parents was the subject of the decree, or for separation. Digitized by Microsoft® 382 Appendix I. 20 & 21 Vict. c. 85. As to mar- riage settle- ments of parties after final decree of nullity of marriage. On a petition by wife on account of adultery, &c. both hus- band and wife com- petent, &c. to give evidence. Extension of right of appeal to House of Lords. The Judge Ordinary may exercise powers now vested in the full Court. Judge Ordinary may call in the assist- ance of one of the other judges. Judge may direct any matter to be heard by the full Court. Appeal to the full Court. 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 enact- ment 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 dissolution 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 seern fit. 6. On any petition presented by a wife praying that her marriage may be dissolved by reason of her husband having been guilty of adultery coupled with cruelty, or of adultery coupled with desertion, the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion. 7. The right of appeal to the House of Lords given by the fifty-sixth section of the recited act shall extend to all sentences and final judgments on petitions under the Legiti- macy Declaration Act, 1858. 23 & 24 Victoria, c. 144. An Act to amend the Procedure and Powers of the Court for Divorce and Matrimonial Causes. [28th August, I860.] 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. It shall be lawful for the Judge Ordinary of the Court for Divorce and Matrimonial Causes alone to hear and de- termine all matters arising in the said Court, and to exer- cise all powers and authority whatever which may now be heard and determined and exercised respectively by the full Court or by three or more judges of the said Court, the Judge Ordinary being one, or where the Judge Ordinary shall deem it expedient, in relation to any matter which he might hear and determine alone by virtue of this act, to have the assistance of one other Judge of the said Court, it shall be lawful for the Judge Ordinary to sit and act with such one other Judge accordingly, and, in conjunction with sucli other Judge, to exercise all the jurisdiction, powers and authority of the said Court. 2. Provided always, that the Judge Ordinary may, where he shall deem it expedient, direct that any such matter as aforesaid shall be heard and determined by the full Court : and in addition to the cases in which an appeal to the full Court now lies from the decision of the Judge Ordinary, either party dissatisfied with the decision of such Judge Digitized by Microsoft® 23 & 24 Vict, c; 144. 383 sitting alone in granting or refusing any application for a new trial which by virtue of this act he is empowered to hear and determine may, within fourteen days after the pronouncing thereof, appeal to the full Court, whose decision shall be final. 3. Where there is a right of appeal to the House of Lords Appeal to the from the decision of the full Court there shall be the like House of right of appeal to the said House from the decision of the Judge Ordinary alone, or with any other Judge, under this act. 4. The sittings of the full Court shall be holden during Regulation the seventh and five following days of sitting in each term, ofthesit- and on such other days as the Judge Ordinary, with the fSfcourt!* assent of the Lord Chief Justice of the Court of Queen's Bench, the Lord Chief Justice of the Court of Common Pleas, and the Lord Chief Baron of the Court of Exchequer, shall from time to time appoint; and the Judges of the Courts of Queen's Bench, Common Pleas and Exchequer shall, by a rota or otherwise, as they deem most convenient, make provision for the attendance of the requisite number of such Judges to make with the Judge Ordinary a full Court during such sittings ; and section two of the act of the last 22 |J S3 Y ict - session of parliament, chapter sixty-one, shall be repealed. repealed.' 5. In every case of a petition for a dissolution of mar- court may, riage it shall be lawful for the Court, if it shall see fit, to where one direct all necessary papers in the matter to be sent to her J"'*^" 1 ^ Majesty's proctor, who shall, under the directions of the quire counsel attorney-general, instruct counsel to argue before the Court t0 . De a P- any question in relation to such matter, and which the Court argue 6 on the may deem it necessary or expedient to have fully argued; oiherside. and her Majesty's proctor shall be entitled to charge and be reimbursed the costs of such proceeding as part of the ex- pense of his office. 6. And whereas by section forty-five of the act of the 20 & 21 Vict, session holden in the twentieth and twenty-first years of her c. 85, s. 45, Majesty, chapter eighty-five, it was enacted, that " In any amenued - 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 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 auy instru- ment 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 Decrees. a decree nisi, not to be made absolute till after the expiration of such time, not less than three months from the pronounc- Now six ing thereof, as the Court shall by general or special order j^™ 1 jjj'y?"; c. 32, s. 3. Digitized by Microsoft® 384 Appendix I. Collusion. Continuance of act. Made perpetual by 25 & 26 Vict. c. 81, s. 1. 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 be- fore 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 abso- lute any person may give information to her Majesty's proctor of any matter material to the due decision of the case, who may thereupon take such steps as the attorney- general may deem necessary or expedient ; and if from any such information or otherwise the said proctor shall suspect that any parties to the suit are or have been acting in collu- sion for the purpose of obtaining a divorce contrary to the justice of the case, he may, under the direction of the at- torney-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 thpreby be fully satisfied his reasonable costs, he shall be entitled to charge and be reimbursed the difference as part of the expense of his office. 8. This act shall continue in force until the thirty-first day of July, one thousand eight hundred and sixty-two, and no longer. 23 & 24 Vict, c. 144. Recited act made per- petual. 25 & 26 Victoria, c. 81. An Act to make perpetual an Act to amend the Procedure and Powers of the Court for Divorce and Matrimonial Causes. [7th August, 1862.] Whereas an act passed in the session of parliament held in the twenty-third and twenty-fourth years of the reign of her Majesty, chapter one hundred and forty-four, and intituled "An Act to amend the Procedure and Powers of the Court for Divorce and Matrimonial Causes," is about to expire; and it is expedient to make the same perpetual : be it there- fore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and tem- poral, and commons, in this present parliament assembled, and by the authority of the same: 1. There shall be repealed the eighth section of the said act, whereby it is provided that the same is to continue in force until the thirty-first day of July, one thousand eight hundred and sixty-two, and no longer, and the said act shall be and is hereby made perpetual. Digitized by Microsoft® 27 & 28 Vict. c. 44. 385 27 & 28 Victoria, c. 44 (a). An Act to amend the Act relating to Divorce and Matri- monial Causes in England, Twentieth and Twenty-first Victoria, Chapter Eighty-five. [14th July, 1864.] Whereas it is expedient to amend an act passed in the Preamble, twentieth and twenty-first years of the reign of her present Majesty, chapter eighty-five: 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. Where under the provisions of section twenty-one of Amending the said act a wife deserted by her husband shall have ob- 2o°&2i° v! °/ tained or shall hereafter obtain an order protecting her c . 85, as to earnings and property from a police magistrate, or justices orders of in petty sessions, or the Court for Divorce and Matrimonial properiyof" Causes, as the case may be, the husband, and any creditor or wife deserted other person claiming under him, may apply to the Court or jj y herhus- to the magistrate or justices by whom such order was made for the di»charge thereof as by the said act authorized ; and in case the said order shall have been made by a police ma- gistrate, 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 magistrate 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. 29 Victoria, c. 32. An Act further to amend the Procedure and Poivers 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 so & 21 Vict. Laws relating to Divorce and Matrimonial Causes in Eng- c " 85, land," it is by the thirty-second section enacted, " that the Court may, on pronouncing 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 (a) This act was passed to remedy the evil in Ex parte Sharp, 10 L. J., N.S.458. B. S Digitized by Microsoft® 386 Appendix I. Power to order monthly or weekly pay- ments to wife from husband on dissolution of marriage. In cases of opposition on certain grounds. Decree nisi not absolute till after six monthd. money as to the* Court may seem reasonable, and for that purpose may refer it to one of the conveyancing counsel of the Court of Chancery to settle and approve of a proper deed to be executed by all necessary parties:" And whereas it sometimes happens that a decree for a dis- solution 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 par- liament assembled, and by the authority of the same, as follows : 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 reason- able : provided always, that if the husband shall afterwards from any cause become unable to make such payments it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same as to the whole or any part of the money so ordered to be paid, and again to revive the same order, wholly or in part, as to the Court may seem fit. 2. In any suit instituted for dissolution of marriage, if the respondent shall oppose the relief sought on the ground in case of such a suit instituted by a husband of his adultery, cruelty, or 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 appli- cation, 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 pro- nouncing thereof, unless the Court shall under the power now vested in it fix a shorter time. S peaches to the jury. 17 & 18 Victoria, c. 125. An Act for the further Amendment of the Process, Practice and Mode of Pleading in and enlarging the Jurisdiction of the Superior Courts of Common Law at Westminster, and of the Superior Courts of Common Law of the Counties Palatine of Lancaster and Durham. [12th August, 1854.] 18. Upon the trial of any cause the addresses to the jury shall be regulated as follows : the party who begins, or his counsel, shall be allowed, in the event of his opponent not announcing at the close of the case of the party who begins his intention to adduce evidence, to address the jury a Digitized by Microsoft® 17 & 18 Vict, c: 125. 387 second time at the close of such case, for the purpose of summing up the evidence; and the party on the other side, or his counsel, shall be allowed to open the case; and also to sum up the evidence (if any) ; and the right to reply shall be the same as at present. 19. It shall be lawful for the Court or judge, at the trial Power to of any cause, where they or he may deem it right for the ai i ouia trial - purposes of justice, to order an adjournment for such time, and subject to such terms and conditions as to costs, and otherwise, as they or he may think fit. 20. If any person called as a witness, or required or de- Affirmation siring to make an affidavit or deposition, shall refuse or be im ^f A of iii. <» i, i • . . . oath in cer- unwilling trom alleged conscientious motives to be sworn, it tain oases. shall be lawful for the Court or judge or other presiding officer, or person qualified to take affidavits or depositions, upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following ; videlicet, • " I, A. B., do solemnly, sincerely, and truly affirm and declare, that the taking of any oath is, according to my religious belief, unlawful ; and I do also solemnly, sincerely, and truly affirm and declare, &c." Which solemn affirmation and declaration shall be of the same force and effect as if such person had taken an oath in the usual form. 21. If any person making such solemn affirmation or persons declaration shall wilfully, falsely and corruptly affirm or making a declare any matter or thing, which, if the same had been f^ n e t „*™ a " sworn in the usual form, would have amounted to wilful and subject to corrupt perjury, every such person so offending shall incur the ? ame the same penalties as by the laws and statutes of this king- a"for me " dom are or may be enacted or provided against persons con- perjury, victed of wilful and corrupt perjury. 22. A party producing a witness shall not be allowed to How far a impeach his credit by general evidence of bad character, but party may he may, in case the witness shall in the opinion of the judge ownwitness. prove adverse, contradict him by other evidence, or, by leave of the judge, prove that he has made at other times a state- ment inconsistent with his present testimony; but before such last-mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. 23. If a witness upon cross-examination as to a former p ro of of con- statement made by him relative to the subject-matter of the tradictory cause, and inconsistent with his present testimony, does not f^™,,™* 5 distinctly admit that he has made such statement, proof may witness. be given that he did in fact make it ; but before such proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be men- tioned to the witness, and he must be asked whether or not he has made such statement. 24. A witness may be cross-examined as to previous cross-exami- s2 Digitized by Microsoft® 388 Appendix I. nation as to previous statements in writing. Proof of pre- vious con- viction of a witness may be given. Attesting witness need not be called except in certain cases. Comparison of disputed writing. Provision for stamping documents at the trial. Officer of the Court to receive the duty and penalty. statements made by him in writing, or reduced into writing, relative to the subject-matter of the cause without such writing being shown to him ; but if it is intended to contra- dict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him : provided always, that it shall be com- petent for the judge, at any time during the trial, to require the production of the writing for his inspection, and he may thereupon make such use of it for the purposes of the trial as he shall think fit. 25. A witness in any cause may be questioned as to whe- ther he has been convicted of any felony or misdemeanor, and, upon being so questioned, if he either denies the fact, or refuses to answer, it shall be lawful for the opposite party to. prove such conviction ; and a certificate containing the sub- stance and effect only (omitting the formal part) of the in- dictment and conviction for such offence, purporting to be signed by the clerk of the Court, or other officer having the custody of the records of the Court, where the offender was convicted, or by the deputy of such clerk or officer (for which certificate a fee of five shillings and no more shall be demanded or taken), shall, upon proof of the identity of the person, be sufficient evidence of the said conviction, without proof of the signature or official character of the person ap- pearing to have signed the same. 26. It shall not be necessary to prove by the attesting witness any instrument to the validity of which attestation is not requisite; and such instrument may be proved by ad- mission or otherwise, as if there had been no attesting wit- ness thereto. 27. Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses ; and such writings, and the evidence of witnesses respecting the same, may be sub- mitted to the Court and jury as evidence of the genuineness or otherwise of the writing in dispute. 28. Upon the production of any document as evidence at the trial of any cause, it shall be the duty of the officer of the Court whose duty it is to read such document to call the attention of the judge to any omission or insufficiency of the stamp ; and the document, if unstamped, or not suffi- ciently stamped, shall not be received in evidence until the whole or (as the case may be) the deficiency of the stamp duty, and the penalty required by statute, together with the additional penalty of one pound, shall have been paid. 29. Such officer of the Court shall, upon payment to him of the whole or (as the case may be) of the deficiency of the stamp duty payable upon or in respect of such document, and of the penalty required by statute, and of the additional penalty of one pound, give a receipt for the amount of the duty or deficiency which the judge shall determine to be payable, and also of the penalty, and thereupon such docu- Digitized by Microsoft® 37 & 18 Vict. c. 125. 389 ment shall be admissible in evidence, saving all just excep- tions on other grounds ; and an entry of the fact of such payment, and of the amount thereof, shall be made in a book kept by such officer; and such officer shall, at the end of each sittings or assizes (as the case may be), duly make a return to the commissioners of the inland revenue of the monies, if any, which he has so received by way of duty or penalty, distinguishing between such monies, and stating the name of the cause and of the parties from whom he received such monies, and the date, if any, and description of the document, for the purpose of identifying the same; and he shall pay over the said monies to the receiver general of the inland revenue, or to such person as the said commissioners shall appoint or authorize to receive the same; and in case such officer shall neglect or refuse to furnish such account, or to pay over any of the monies so received by him as afore- said, he shall be liable to be proceeded against in the manner directed by the eighth section of an act passed in the session of parliament holden in the thirteenth and fourteenth years of the reign of her present Majesty, intituled "An Act to 13 & u Vict, repeal certain Stamp Duties, and to grunt others in lieu <=. 97. thereof, and to amend the Laws relating to the Stamp Duties;" and the said commissioners shall, upon request, and production of the receipt hereinbefore mentioned, cause such documents to be stamped with the proper stamp or stamps in respect of the sums so paid as aforesaid : provided always, that the aforesaid enactment shall not extend to any document which cannot bow be stamped after the execution thereof on payment of the duty and a penalty. SO. No document made or required under the provisions Nodocu- of this act shall be liable to any stamp duty. thh lette™ 31. No new trial shall be granted by reason of the ruling re qui rea of any judge that ihe stamp upon any document is sufficient stamp. or that the document does not require a stamp. No new trial 32. Error may be brought upon a judgment upon a special {"^"f as case in the same manner as upon a judgment upon a special „ ' ,. , , r J . c r '. , Error may oe verdict, unless the parties agree to the contrary; and the brought on a proceedings for bringing a special case before the Court of special case. Error shall, as nearly as may be, be the same as in the case of a special verdict ; and the Court of Error shall either affirm the judgment or give the same judgment as ought to have been given in the Court in which it was originally decided, the said Court of Error being required to draw any inferences of fact from the facts stated in such special case which the Court where it was originally decided ought to have drawn. 33. In every rule nisi for a new trial or to enter a verdict Grounds to or nonsuit, the grounds upon which such rule shall have been Jj^Jfj^f j" r granted shall be shortly stated therein. new trial. 34. In all cases of rules to enter a verdict or nonsuit upon ir ru | e nisi a point reserved at the trial, if the rule to show cause be re- refused, fused or granted and then discharged or made absolute, the ap"^™ 37 party decided against may appeal. 35. Id all cases of motions for a new trial upon the ground Appeal upon Digitized by Microsoft® 390 Appendix I. rule dis- charged or absolute. Courts of Error to be Courts of Appeal. Notice of appeal. Bail. Form of appeal. Rule nisi granted on appeal, how disposed of. Judgment in Court of Appeal. PowerB of Court of Appeal as to costs and otherwise. Error upon award of trial de novo. Payment of costs upon new trial on matter of fact. that the judge has not ruled according to law, if the rule to show cause be refused, or if granted be then discharged or made absolute, the party decided against may appeal, pro- vided any one of the-judges dissent from the rule being re- fused, or, when granted, Being discharged or made absolute, as the case may be, or, provided the Court in its discretion think fit that an appeal should be allowed; provided, that where the application for a new trial is upon matter of dis- cretion only, as on the ground that the verdict was against the weight of evidence or otherwise, no such appeal shall be allowed. 36. The Court of Error, the Exchequer Chamber, and the House of Lords shall be Courts of Appeal for the purposes of this act. 37. No appeal shall be allowed unless notice thereof be given in writing to the opposite party or his attorney, and to one of the masters of the Court, within four days after the decision complained of, or such further time as may be al- lowed by the Court or a judge. 38. Notice of appeal shall be a stay of execution, provided bail to pay the sum recovered and costs, or to pay costs where the appellant was plaintiff below, be given, in like manner and to the same amount as bail in error, within eight days after the decision complained of, or before execution delivered to the sheriff. 39. The appeal hereinbefore mentioned shall be upon a case to be stated by the parties (and, in case of difference, to be settled by the Court or a judee of the Court appealed from), in which case shall he set forth so much of the plead- ings, evidence and the ruling or judgment objected to, as may be necessary to raise the question for the decision of the Court of Appeal. 40. When the appeal is from the refusal of the Court below to grant a rule to show cause, and the Court of Appeal grant such rule, such rule shall be argued and disposed of in the Court of Appeal. 41. The Court of Appeal shall give such judgment as ought to have been given in the Court below ; and all such further proceedings may be taken thereupon as if the judg- ment had been given by the Court in which the record originated. 42. The Sourt of Appeal shall have power to adjudge pay- ment of costs, and to order restitution ; and they shall have the same powers as the Court of Error in respect of awarding process and otherwise. 43. Upon an award of a trial de novo by any one of the Superior Courts or by the Court of Error upou matter appearing upon the record, error may at once be brought ; and if the judgment in such or any other case be affirmed in error, it shall be lawful for the Court of Error to adjudge costs to the defendant in error. 44. When a new trial is granted, on the ground that the verdict was against evidence, the costs of the first trial shall abide the event, unless the Court shall otherwise order. Digitized by Microsoft® 17 & 18 Vict. c. 125. 391 45. Upon motions founded upon affidavits it shall be law- Affidavits on ful for either party, with leave of the Court or a judge, to newmatter - make affidavits in answer to the affidavits of the opposite party, upon any new matter arising out of such affidavits, subject to all such rules as shall hereafter be made respecting such affidavits. 46. Upon the hearing of any motion or summons it shall Power to be lawful for the Court or judge, at their or his discretion, f^glto and upon such terms as they or he shall think reasonable, direct oral from time to time to order such documents as they or he may "™ ina - think fit to be produced, and such witnesses as the}' or he witnesses. may think necessary to appear, and be examined vivd voce, either before such Court or judge, or before the master, and upon hearing such evidence, or reading the report of such master, to make such rule or order as may be just. 47. The Court or judge may, by such rule or order, or proceedings any subsequent rule or order, command the attendance of the before and witnesses named therein, for the purpose of being examined, examination. or the production of any writings or other documents to be mentioned in such rule or order; and such rule or order shall be proceeded upon in the same manner, and Bhall have the same force and effect, as a rule of the Court under an act passed in the first year of the reign of his late Majesty King William the Fourth, intituled " An Act to enable Courts of i will. 4, Law to order the Examination of Witnesses upon Interro- c - 22 - gatories or otherwise ;" and it shall be lawful for the Court or judge or master to adjourn the examination from time to time as occasion may require ; and the proceedings upon such examination shall be conducted, apd the depositions taken down, as nearly as may be, in the mode now in use with respect to the vivd voce examination of witnesses under the last-mentioned act. 48. Any party to any civil action or other civil proceeding Examination in any of the Superior Courts, requiring the affidavit of a of person person who refuses to make an affidavit, may apply by sum- ™ ^Ikeon nions for an order to such person to appear and be examined affidavit. upon oath before a judge or master to whom it may be most convenient to refer such examination, as to the matters con- cerning which he has refused to make an affidavit ; and a judge may, if he think fit, make such order for the attend- ance of such person before the person therein appointed to take such examination, for the purpose of being examined as aforesaid, and for the production of any writings or docu- ments to be mentioned in such order, and may therein impose such terms as to such examination, and the costs of the application and proceedings thereon, as he shall think just. 49. Such order shall be proceeded upon in like manner as Proceedings an order made under the hereinbefore-mentioned act passed forTxamina- in the first year of the reign of his late Majesty King William tion. the Fourth, and the examination thereon shall be conducted, and the depositions taken down and returned, as nearly as may be, in the mode now used on vivd voce examinations under the said act of parliament. Digitized by Microsoft® ( 392 ) APPENDIX II. RULES AND REGULATIONS for her Ma- jesty's Court for Divorce and Matrimonial Causes, made under the provisions of 20 fy 21 Vict. c. 85 ; 21 Sf 22 Vict. c. 108 ; 22 # 23 Fi'c*. c. 61 ; 23 # 24 Ft'c*. c. 144 ; 25 4- 26 Vict. c. 81 ; 27 ^ 28 Vict. c. 44 ; a«d 21 £ 22 Fi'c*. c. 93, Whereas by an act passed in the session of parliament holden in the twentieth and twenty-first years of the reign of her present majesty, chapter 85, it is provided that there shall be a court of record, to be called " The Court for Di- vorce and Matrimonial Causes;" and whereas, by the said act it is further provided, that the said court shall make such rules and regulations concerning the practice and pro- cedure under the said act, as it may from time to time con- sider expedient, and shall have full power from time to time to revoke or alter the Siime; and whereas, by another act passed in the session of parliament holden in the twenty- third and twenty-fourth years of her majesty's reign, chapter 144, it is enacted, that it shall be lawful for the judge ordi- nary of the court for divorce and matrimonial causes alone to exercise all powers and authority whatever thentofore exercised by the full court. Now I, Sir James Plaisted Wilde, judge ordinary of her majesty's court for divorce and matrimonial causes, do re- voke all rules and regulations heretofore made and issued concerning the prnctice and procedure in the said court for divorce and niritrimonial causes, and do make the following rules and regulations in place thereof, to take effect on and after the 11th January, 1866. Dated the twenty-sixth day of December, 1865. (Signed) James Piaisted Wilde. 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 ac- cordance with them prior to the said day. The following rules and regulations shiill take effect in her majesty's court for divorce and matrimonial causes on and after the 11th day of January, 1866. Digitized by Microsoft® Rules and Regulations. 393 Petition. 1. Proceedings before the court for divorce and matrimo- nial causes shall be commenced by filing a petition. — A form of petition is given in the Appendix (IV ), No. 1. 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 affidavit shall be filed with the petition. 3. In cases where the petitioner is seeking a decree of nullity of marriage, or of judicial separation, or of dissolu- tion of marriage, or a decree in a suit of jactitation of mar- riage, the petitioner's affidavit, filed with his or her petition, shall further state that no collusion or connivance exists be- tween the petitioner and the other party to the marriage or alleged marriage. Co-respondents. 4. Upon a husband filing a petition for dissolution of marriage on the ground of adultery the alleged adulterers shall be made co-respondents in the cause, unless the judge ordinary shall otherwise direct. 6. 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 application 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 direc- tions as he may think fit as to service of the amended petition. 7. The term "respondent," where the same is hereinafter 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 ser- vice on each respondent in the cause. — A form of citation is given in the Appendix (IV.), No. 2. 9. Every citation shall be written or printed on parch- ment, 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 form of praecipe is given in the Appendix (IV.), No. 3. The address given in the praecipe must be within three miles of the general post- office. s5 Digitized by Microsoft® 394 Appendix II. Service. 10. Citations are to be served personally, when that can be done. 11. Service of a citation shall be effected by personally delivering a true copy of the citation to the party cited, and producing the original, if required. 12. To every person served with a citation shall be de- livered, together with the copy of the citation, a certified copy of the petition, under seal of the court. 13. In cases where personal service cannot be effected, application 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 certificate of service endorsed thereon, shall be forthwith returned into and filed in the registry. —The form of certifi- cate of service is given in the Appendix (IV.), No. 4. 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 substan- tially in the form given in the Appendix (IV.), No. 5, 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. — The form of entry of appearance is given in the Appendix (IV.), No. 6. 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 of the judge ordinary, or of the registrars in his absence, to be applied for by motion founded on affidavit. 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 appear- ance 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. Digitized by Microsoft® Rules and Regulations. 395 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 pro- ceeding. 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 con- tains 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 25Z., 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. 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. 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. — A form of answer is given in the Appendix (IV.), No. 7. 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, veri- fying such other or additional matter, so far as he or §he 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. 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 affi- davit filed with the answer, further state that there is not any collusion or connivance between the deponent and the petitioner. Digitized by Microsoft® 396 Appendix II. 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 ihe 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 judge ordinary, or of one of the registrars in his absence, obtained on summons. 35. When a petition, answer, or other pleading 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. 36. A copy of every pleading shewing the alterations and amendments made therein shall be delivered to the op- posite 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 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 judge 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. Service of Pleadings, Sfc. 39. It shall be sufficient to leave all pleadings and other instruments, personal service of which is not expressly re- quired by these rules and regulations, at the respective addresses furnished by or on behalf of the several parties to the cause. Digitized by Microsoft® Rules and Regulations. 397 Mode of Trial. 40. When the pleadings on being concluded have raised any questions of tact, 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 lail 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. 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.— A form is given in the Appendix (IV.), No. 8. 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. 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 altera- tion 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. 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 appearance has been entered. 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, Digitized by Microsoft® 398 Appendix II. 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. 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 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. 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. 52. Counter affidavits as to any facts to be proved by affidavit maybe 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 pf the judge ordinary, or of the registrars in his absence. 55. Application for an order for the attendance of a depo- nent 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 ab- sence to the registrars, to be beard on his petition touching any collateral question which may arise in a suit. Digitized by Microsoft® Rules and Regulations. 399 57. The party to whom leave has been given to be heard on his petition shall within eight days file his act on pe- tition 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 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 form of act on petition, answer, and conclusion is given in the Appendix (IV.), No 9. 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 ex- pired, 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 hi3 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. 62. An application to the judge ordinary for a new trial of issues of fact tried by a jury, or for a re-hearing of a cause, may be made by motion within fourteen days from the day on which the issues were tried or the cause was beard, if the judge ordinary be then sitting to hear motions, if not, on the first day appointed for hearing motions in this court after the expiration of the fourteen days. 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 petitioner relies. — A form of such petition is given in the Appendix (IV.), No. 10. 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 Digitized by Microsoft® 400 Appendix II. in the same manner as before directed in respect of an ori- ginal petition for judicial separation, and answer thereto, so far as such directions 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 appearance 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 re- spect of the pleadings and proceedings of the original parties to the cause. 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 appearance in the cause in which such decree nisi has been pronounced. 71. Every such person shall at the time of entering an appearance, 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 pro- nounced. 73. The party in the cause in whose favour the decree nisi has been pronounced may, within eight days after de- livery 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 supporting the decree nisi. 75. No affidavits are to be filed in rejoinder to the affi- davits 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 ar- gued in such manner and at 6uch 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 Digitized by Microsoft® Eules and Regulations. 401 and subject to the same rules as any other issue tried in this court. Appeals to the full Court. 77. An appeal to the full court from a decision of the judge ordinary must be asserted in writing and the instru- ment 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. — A form of instrument of appeal is given in the Appendix (IV.), No. 11. 78. The appellant within ten days after filing his instru- ment 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, solicilor, or attorney, who, within ten days from the time of such filing and delivery or from such further time as may be allowed lor the purpose by the judge ordinary, or the regis- trars in his absence, shall be at liberty to file in the registry a case against the appeal, also in triplicate, and the re- spondent 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 iu 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 be- half 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. — A form of affidavit is given in the Appendix (IV.), No. 12. Alimony. 81. The wife, being the petitioner in a cause, may file her petition for alimony pending suit at any time after the cita- tion has been duly served on the husband, or after order Digitized by Microsoft® 402 Appendix II, made by the judge ordinary to dispense with such service, provided the factum of marriage between the parties is esta- blished 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 form of petition for alimony is given in the Appen- dix (IV.), No. 13. 84. The husband shall, within eight days after the filing and 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. 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 per- mission 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 allot- ment of alimony pending suit, notice of the motion, and of the intention to examine witnesses, being given to the hus- band,, or to his proctor, solicitor, or attorney, four days pre- viously to the motion being heard and the witnesses ex- amined, unless the judge ordinary shall dispense with such notice. 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 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 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. • 92. A wife may at any time after alimony has been Digitized by Microsoft® Rules and Regulations. 403 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 re- quired by these rules and regulations in respect of the ori- ginal petition for alimony, and the allotment thereof, so far as the same are applicable. 93. Permanent alimony shall, unless otherwise 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. 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 Vict. c. 85, and by section 5 of the 22 & 23 Vict. 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 sec- tion 32 of the 20 & 21 Vict. 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 re- spect of which the application 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. 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 inves- tigate the averments therein contained, in the presence of the parties, their proctors, solicitors, or attornies, 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 Digitized by Microsoft® 404 Appendix II. 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. 102. The report of the registrar shall be filed in the re- gistry 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 expira- tion of fourteen days, may be heard by the judge ordinary on motion in objection to the registrar's report, or may apply ou 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 peti- tion 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. 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.— The form of an instrument of election is given in the Appendix (IV.), No. 14. 106. The necessary instrument of election must be filed in the registry before the guardian elected can be permitted to extract a citatiou 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 tor 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 conducting his defence. Subpoenas. 109. Every subpoena shall be written or printed on parch- ment, and may include the names of any number of wit- nesses. The party issuing the same, or his or her proctor, solicitor, or attorney, shall take it, together with a praecipe, Digitized by Microsoft® Rules and Regulations. 405 to the registry, and there get it signed and sealed, and there deposit the praecipe. — Forms of subpcena, Nos. 15 and 17, and forms of praecipe, Nos. 16 and 18, are given in the Ap- pendix (IV.) 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 thejudgp ordinary by motion in court. 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 regis- trars, 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. Service of Notices, tyc. 114. It shall be sufficient to leave all notices and copies of pleadings and other instruments which by these rules and regulations are required to be given or delivered to the op- posite parties in the cause, or to their proctors, solicitors, or attorneys, and personal service of which is not expressly re- quired at the address furnished as aforesaid by the petitioner and respondent respectively. 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 previously 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 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. 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 pro- duced to the party served, and annexed to the affidavit of Digitized by Microsoft® 406 Appendix II. service marked as an exhibit by the commissioner or other person before whom the affidavit is sworn. Office Copies, Extracts, Sfc. 118. The registrars of the principal registry of the court of probate are to have the custody of all pleadings 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 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 72 words per folio. 1 19. 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 Rules. 121. The judge ordinary shall in every case in which a time is fixed by these rules and regulations for the perform- ance of any act, or for any proceeding in default, have power to extend the same to such time and with such qualifications and restrictions 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 be- fore application can be made to the judge ordinary for an extension thereof, any one of the registrars may, upon rea- sonable 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. 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 of Sundays, Christmas-day, and Good Friday. 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. — A form of application is given in the Appendix (IV.), No. 19. 125. Applications for the discharge of any order made to Digitized by Microsoft® Rules and Regulations. 407 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. 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 conditioned against marrying again. Change of Proctor, Solicitor, or Attorney. 127. A party may obtain an order to change his or her proctor, solicitor, or attorney upon application by summons to the judge ordinary, or to the registrars in his absence. 128. In case the former proctor, solicitor, or attorney neg- lects to file his bill of costs for taxation at the time required by the order served upon him, the party may, with the sanc- tion and by order of the judge ordinary or of the registrars, proceed in the cause by the new proctor, solicitor, or at- torney, without previous payment of such costs. Order for the immediate Examination of a Witness. 129. Application for an order for the immediate examina- tion 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 pro- ceeding 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. 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 ordi- nary 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 6uch 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 ap- plication 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 exa- mine witnesses who are out of the jurisdiction of the court is to be made by summons, or if on behalf of a petitioner pro- ceeding in default of appearauce without summons, before one of the registrars, who will order such commission or re- Digitized by Microsoft® "*08 Appendix II. quisition to issue, or refer the application to the judge ordi- nary, as he may think fit. 133. A commission or requisition for examination of wit- nesses 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 prepared by the party applying for the same, and a copy thereof shall be delivered to the parties entitled to cross-ex- amine 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 com- mission or requisition, or to insert any special provision therein, and the registrar shall make an order on such appli- cation, or refer the matter to the judge ordinary — A form of a commission and requisition is given in the Appendix (IV.), No. 20. 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 requisition, and to examine witnesses thereunder ; and the registrar to whom the application is made may direct the necessary alterations to be made in the commission or requi- sition for that purpose, and settle the same, or refer the ap- plication 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 com- mission 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 spe- cial 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 re- quisition shall issue from the registry, unless the judge or- dinary or one of the registrars in his absence shall otherwise direct. 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. 140. No affidavit will be admitted in any matter depend- ing in the court for divorce and matrimonial causes in which Digitized by Microsoft® Rules and Regulations. 409 . . .* any material part is written on an erasure, or in the jurat of ■which there is any interlineation or erasure, or in which there is any interlineation the extent of which at the time when the affidavit was sworn is not clearly shown by the initials of the registrar, commissioner, or other authority be- fore whom it was sworn. 141. Where an affidavit is made by any person who is blind, or who, from his or her signature or otherwise, ap- pears 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 per- fectly 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. 14-2. 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 at- torney. 143. Proctors, solicitors, and attorneys, and their clerks respectively, if acting for any other proctor, solicitor, or at- torney, shall be subject to the rules and regulations in re- spect 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 de- livered 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 to affi- davits 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 al- ready 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. 148. If the cases tendered are deficient in any of the above particulars, the same shall not be received in the re- gistry 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 de- B. T Digitized by Microsoft® 410 APPENDIX II. * posited with the proper clerk, in order to their being sent with the case to the judge ordinary. 150. Copies of any affidavits or documents to be read or used in support of a motion are to be delivered to the oppo- site parties to the suit who are entitled to be heard in oppo- sition thereto. Taxing Bills of Costs. 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. 152. Notice of the time appointed for taxation will be forwarded to the party filing the bill, at the address fur- nished 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 appointment, 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 at- tendance 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. 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 taxa- tion thereof, no costs incurred in such taxation shall be allowed as part of such bill. 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. Wife's Costs. 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 in his absence, to be obtained on summons, a wife who has entered an appear- ance may file her bill of costs for taxation as against her husband, and the registrar to whom such bill of costs is re- ferred for taxation shall at the same time, if directions as to the mode of hearing or trial have been given, otherwise when the same are given, ascertain and report to the court what is a sufficient sum of money to be paid into the re- Digitized by Microsoft® Exiles and Kegtjxations. 411 gistry, 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 or trial of the cause. — A form of bond for secur- ing a wife's costs of hearing or trial of a cause is given in the Appendix, No. 21. 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 al- lowed by the judge ordinary, at the time of such hearing or trial. Summonses. 160. A summons may be taken out by any person in any matter or suit depending in the court for divorce and matri- monial 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 takiug 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 seven o'clock p.m. On Satur- days the copy of the summons is to be served before two 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 summofis book. 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 sum- mons do not during such time appear, will be deemed suffi- cient, 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 sum- moned, must be filed in the registry. An order will there- upon be drawn up, and delivered to the person filing such summons or copy. 167. If a summons is brought to the registry, with con- sent to an order endorsed thereon, signed by the party sum- moned, or by his proctor, solicitor, or attorney, an order will be drawn up without the necessity of going before the judge ordinary : provided that the order sought is in the T 2 Digitized by Microsoft® 412 Appendix II. 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 appli- cable, be observed in respect to summonses which may be heard and disposed of by the registrars. 169. Persons applying for payment of money out of court are to bring into the registry a notice in writing setting forth the day on which the money applied for was paid into the registry, the minute entered in the court books on receiv- ing the same, the date and particulars of the order for pay- ment to the applicant. In case the money applied for be in payment, of costs, the notice must also set forth the date of filing the bill for taxation, and of the registrar's certificate. 170. The above notice must be deposited in the registry two clear days at least before the money is paid out, and is, in that interval, to be examined by one of the clerks of the registry with the original entries in the court books, and the bills of costs referred to in it, and certified by such clerk to be correct. 171 . When the court is not sitting, payment of money out of court will be made only on such day or days of the week as may be fixed by the registrars, notice whereof will be given in the registry. Registries and Officers. 172. The registry of the court for divorce and matri- monial 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 dis- charge 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 proceed- ings under " the Legitimacy Declaration Act, 1858." CONSOLIDATED ORDERS IN CHANCERY. ORDER XXIX. PROCESS TO ENFORCE DECREES AND ORDERS. Rule *i. *1. Where any person is by any decree or order directed wfthout'de- t0 P a y an y raone y or deliver up or transfer any property mand, of real or personal to another, it shall not be necessary to make performing Digitized by Microsoft® Consolidated Oedees in Chanceby. 413 any demand thereof ; but the person so directed shall be decree or bound to obey such decree or order, upon being duly served money°o? ay with the same, without demand; and process of contempt transferor may issue accordingly to enforce performance thereof. (30th deliver up March, 1859; Ord! 17.) _ property - 2. Every person, not being a party in any cause, who Rule 2. obtains an order, or in whose favour an order is made, shall Process for be entitled to enforce obedience to such order by the same Jereonsnot process as if he were a party to the cause. And every person, parties to not being a party in any cause, against whom obedience to cause - any order may be enforced, shall be liable to the same pro- cess for enforcing obedience to such order as if he were a party to the cause. (26th Aug. 1841 ; Ord. 15.) I. Attachment, Serjeant-at-Arms and Sequestration. 3. Where any person is by a decree or order made in any Rule 3. suit or matter directed to pay money or to do any other act M° a . e of en - in a limited time, and, after due service of such decree or creeTand 6 " order, refuses or neglects to obey the same according to the orders, exigency thereof, the person prosecuting such decree or order shall, at the expiration of the time limited for the perform- Attachment. - ance thereof, be entitled to a writ or writs of attachment against the disobedient person. And in case such person Sequestra- shall be taken or detained in custody under any such writ of tion - attachment without obeying the same decree or order, then the person prosecuting the same decree or order shall, upon the sheriff's return tliat the disobedient person has been so taken or detained, be entitled to a commission of sequestra- tion against his estate and effects. And in case the sheriff Serjeant-at- shall make the return non est inventus to such writ or writs arms- of attachment, the person prosecuting such decree or order shall be entitled at his option either to a commission of sequestration in the first instance, or otherwise to an order for the serjeant-at-arms, and to such other process as he was formerly entitled to upon a return non est inventus made by the commissioners named in a commission of rebellion issued for the non-performance of a decree or order. (Ord. of 18th July, 1857, amending 11th Ord. of 11th April, 1842.) 4. When a person is committed or brought up by the Rule 4. serjeant-at-arms for breach of a decree or order, he shall not JJSi " be released until he has performed the decree or order in all committed^ things that are to be immediately performed, and given such brought up security as the court shall direct to perform the other parts je^ntat"" of the decree or order (if any) at the future days and times arms may he thereby appointed. (22nd May, 1661 ; Sanders, 308.) released. II. Writ of Assistance. 5. Upon due service of a decree or order for delivery of Rule 5. possession, the person prosecuting the same shall be entitled to ^Jf t h ^ f to an order for a writ of assistance. (26th Aug. 1841 ; Ord. 13.) assistance. III. Fieri Facias, Elegit and Venditioni Exponas. 6. Every person to whom, in any cause or matter pending w^ofV'fa in this court, any sum of money or any costs shall have been or elegit on Digitized by Microsoft® 414 Appendix II. order for pay- ment of money or costs. Role 7. Marking order for payment ■with date on ■which it was left for entry. Rule 8. By whom and how such writs to be exe- cuted. Return, deli- very, and filing thereof. Fees to sheriff or other officer. Rule 9. "Writ of ven- ditioni exponas. Rule 10. Indorsement on writs of fi. fa. and elegit. directed to be paid, shall, after the lapse of one month from the time when the decree or order for payment was duly passed and entered, be entitled to sue out one or more writ or writs of fieri facias or writ or writs of elegit of the form set forth in schedules (F.) and (G.), or as near thereto as the circumstances of the case may require. (10th May, 1839 ; Ord. 1.) 7. Upon every such decree or order hereafter to be entered, one of the entering clerks shall, at the request of the party leaving the same, mark the day of the month and year on which the same is so left for entry : and no writ of fieri facias or elegit shall be sued out upon any such decree or order, unless the date of such entry is so marked thereon. (10th May, 1839; Ord. 2.) 8. Such writs when sealed shall be delivered to the sheriff or other officer to whom the execution of the like writs issuing out of the superior courts of common law belongs, and shall be executed by such sheriff or other officer as nearly as may be in the same manner in which he ought to execute such like writs. And such writs; when returned by such sheriff or other officer, shall be delivered to the parties or solicitors by whom respectively they were sued out, and shall thereupon be filed as of record in the office of the clerks of record and writs. And for the execution of such writs, such sheriff or other officer shall not take or be allowed any fees other than such as are or shall be from time to time allowed by lawful authority for the execution of the like writs issuing out of the superior courts of common law. (10th May, 1839 ; Ord. 3.) 9. Where it appears, upon the return of any such writ of fieri facias as aforesaid, that the sheriff or other officer has by virtue of such writ seized but not sold any goods of the person directed to pay such sum of money or costs as afore- said, the person to whom such sum of money or costs is pay- able, shall, immediately after such writ with such return shall have been filed as of record, be at liberty to sue out a writ of venditioni exponas in the form set forth in schedule (H.), or as near thereto as the circumstances of the case may require. (10th May, 1839 ; Ord. 4.) 10. On every such writ of fieri facias and elegit so to be issued as aforesaid, there shall be indorsed, in addition to the particulars required by the 2nd or 5th Rule of Order III., the words " By the Court," and also thereunder the calling and place of residence of the person against whom such writ shall be issued ; and every such writ shall be also indorsed for the sum to be levied, according to the form used upon like writs issuing out of the superior courts of common law. (10th May, 1839; Ord. 5.) IV. Fieri Facias de bonis Ecclesiasticis and Sequestrari Facias de bonis Ecclesiasticis. Rule n. 11. Where it appears, upon the return of any writ of w hen writ of f er i facias or any writ of elegit issued in pursuance of the bonis eoclesi- 6th rule of this Order, that the person against whom such astiois or writ was so issued, is a beneficed clerk, and has no goods or Digitized by Microsoft® Consolidated Orders in Chancery. 415 chattels nor any lay fee in the bailiwick of the sheriff to w "' of«?r whom such writ was directed, the person to whom the sum fadas'may be of money or costs mentioned in such writ is or are payable, sued put. shall, immediately after such writ with such return shall have been filed as of record, be at liberty to sue out one or more writ or writs of fieri facias de bonis ecclesiasticis, or one or more writ or writs of seguestrari facias, in the form stated in schedule (J.), or as near thereto as [he circumstances of the case may allow. (18th July, 1857 ; Ord. 2.) 12. On every such writ of fieri facias de bonis ecalesi- Rule 12. asticis or writ of seguestrari facias so to be issued as afore- indorsement said, there shall be indorsed, in addition to the particulars required by the 2nd or 5th Rule of Order III., the words " By the Court," and also thereunder the calling, if any, and place of residence, if any, of the person against whom such writ shall be issued ; and every such writ shall be also indorsed for the sum to be taken or levied, according to the form used upon like writs issuing out of the superior courts of common law. (18th July, 1857 ; Ord. 3.) 13. Such writs, when sealed, shall be delivered to the Rule is. bishop, and shall be executed by him as nearly as may be in Proceedings the same manner in which he ought to execute such like writs issuing out of the superior courts of common law. And such writs, when returned by the bishop, shall be de- livered to the parties or solicitors by whom respectively they were sued out, and sliall thereupon be filed as of record in the office of the clerks of records and writs. And for the Fees to the execution of such writs, the bishop or his officers shall not bishop or his take or be allowed any fees other than such as are or shall ° cers " be from time to time allowed by lawful authority for the execution of the like writs issuing out of the superior courts of common law. (18th July, 1857; Ord. 4.) ORDER XXX. PROCESS GENERALLY. 1. Every suitor who prosecutes a contempt, shall use his Rule i. best endeavour to procure each process to be duly served ? n b lea ™'J r and executed upon the party prosecuted; otherwise he in executing shall pay costs unto the party aggrieved, and lose the process. benefit of the process returned. (22nd May, 1661; San- ders, 306.) 2. After any order for a serjeant-at-arms shall be granted r cie 2. by the court, the registrar shall on request draw up the said Order for order, and deliver the same to the serjeant-at-arms or his arrnsTo'be" deputy, who shall thereupon endeavour to apprehend the drawn up party prosecuted and bring him into court to answer his and delivered contempt, if he can. But if he cannot, no such order for serjeant. a serjeant-at-arms shall be discharged, nor the contempt No such thereupon, without a certificate under the hand of the ?' der ' nor serjeant-at-arms that his fees have been paid. And after tempt, to be Digitized by Microsoft® 416 Appendix II. — Consol. Okdees in Chancery. discharged, nor the suit compro- mised, with- out payment of his fees. RVLE 3. New writ of habeas. Rule 4. Abolition of writ of exe- cution to enforce decrees or orders. Rule 5. Writs of attachment with procla- mations and rebellion abolished. the said order shall have been so drawn up and passed, no private or other agreement shall be made between the party prosecuting the contempt and the person standing in con- tempt, or on their behalf, for a compromise of the suit or the discharge of the contempt, unless such satisfaction shall be made, and a certificate thereof shall be produced to the court. (4th Nov. 1674. 13th July, 1685. 12th June, 1694.) 3. Where a party is brought up to this court by virtue of any writ of habeas duly issued from the office of the clerks of records and writs, and by reason of the pressure of other business, or from any other cause, the hearing of the cause or matter in which such party is concerned is postponed to a future day, a new writ of habeas may be issued for such future day, if the court shall so direct, without payment of any fee. (31st Jan. 1846.) 4. No writ of execution shall he issued for the purpose of requiring or compelling obedience to any decree or order, but the person required by any such decree or order to do any act, shall, upon being duly served with such decree or order, be held bound to do such act in obedience thereto. (11th April, 1842; Ord. 6, amending 10th Ord. of 26th Aug. 1841.) 5. No writ of attachment with proclamations nor any writ of rebellion shall be issued for the purpose of compelling obedience to any process, order, or decree of the court. (26th Aug. 1841 ; Ord. 6.) Digitized by Microsoft® ( 417 ) APPENDIX III. TABLE OF FEES to be taken in the Court for Divorce and Matrimonial Causes. £ s. d. On every citation .. .. .. .. .. .. ..050 On entering appearance .. .. .. .. .. ..026 Filing a petition 050 Filing an answer .. .. .. .. .. .. ..050 Filing a reply 050 Filing any further replication to a petition 5 Filing application for an order for the protection of a wife's earn- ings and property . . .. .. .. .. .. ..050 Filing application for discharge of such order 5 Filing interrogatories .. .. .. .. .. ..050 Filing answer of each deponent to interrogatories . . ..050 On every motion by counsel, inclusive of filing the case for motion 050 Entering order of the Court on motion 5 Summons to attend in chambers .. .. .. .. ..026 For entering order of Court on summons 2 6 Filing notice .. .. .. .. .. .. .. ..010 On depositing the record .. .. .. .. .. ..100 For the settling of the record by one of the registrars . . . . 10 Setting a cause down for hearing or trial . . . . . . ..050 Entering sentence or final decree in a cause .. .. . . 10 Entering special verdict, if five folios of seventy-two words or under .. .. .. .. .. .. .. ..026 If exceeding five folios, per folio of seventy-two words .. ..006 Entering decree or order in pursuance of a written judgment from the judge of an Ecclesiastical Court .. .. ..* 10 Entering any decree or order for alimony . . . . . . ..050 Entering order directing how damages shall be applied .. .. 5 Entering order providing for custody, maintenance or education of children, if two folios of seventy-two words or under .. .. 5 Entering order for settlement of the wife's property, if two folios of seventy-two words or under .. .. .. .. ..050 If either of the above orders exceed five folios, for each additional folio .. ..« 020 Entering any minute, order or decree in the Court book other than the decrees or orders before specified .. .. .. ..026 On withdrawal of a cause after same is set down for hearing, to be paid by the party at whose instance it is withdrawn . . ..050 On the hearing or trial of a cause : From the plaintiff 100 From the defendant or defendants .. .. .. .. 15 T 5 Digitized by Microsoft® 418 Appendix III. £ i. d. If the hearing or trial continues more than one day, for each day: From the plaintiff 10 From the defendant or defendants .. . . .. ..0100 Producing the judge's notes .. .. .. .. ..050 Bill of exceptions signed by the judge .. .. . . ..050 Entering on the record the rinding of the jury or the decision of the judge .. .. . . . . .. • • •• ..050 On every subpoena .. . . •• .» .. .. ..026 On a certificate under the hand of thejudge .. .. ..026 On every commission issuing under seal of the Court .. .. 10 Writ of attachment 076 Writ of sequestration .. .. .. .. .. ..100 On lodging instrument of appeal .. .. .. .. .. 10 Search in Court books, if within the last two years .. ..010 If at an earlier period than within two years .. .. ..026 In case the Court books to be searched or the documents required are not in the registry, in addition to the above . . ..026 Filing an entry of remission of appeal .. .. •■ 10 Filing exhibits, not exceeding ten, for each exhibit . . ..010 Exceeding ten, but not exceeding twenty .. .. .. .. 10 Exceeding twenty, but not exceeding fifty .. .. . . 15 If exceeding fifty .. .. .. .. .. .. ..100 Office copies of minutes, orders or decrees, judge's notes or other documents filed in a cause : If five folios of seventy- two words or under .. .. 2 6 If exceeding five folios of seventy-two words, per folio .. 6 In case the same are under seal of the Court, in addition for theseal 5 Filing every affidavit or other document brought into Court or deposited in the registry for filing which no fee is before spe- cified ; 026 Taxing every bill of costs : If three folios of seventy- two words or under .. ..026 If exceeding three folios of seventy-two words .. When taxed as between party and party, per folio . . 6 When taxed as between practitioner and client, per folio 10 For administering oaths to each deponent.. .. .. ..010 Examiner appointed to take evidence under a commission for examination of witnesses, for each day's attendance, besides travelling expenses .. .. .. .. .. ..330 ADDITIONAL TABLE OF FEES to be taken in the Begistry of the Court for Divorce and Matrimonial Causes. £ s. d. For marking each exhibit annexed to an affidavit . . ..010 For settling the form of advertisements of citations or other adver- tisements .. .. .. .. .. .. .. ..050 For taking the evidence of one or more witnesses before the re- gistrar, for each day, and within three miles of the General Post Office 330 If beyond that distance .. .. .. .. ..550 If for part of a day only, such smaller fee as the registrar in his discretion shall think proper. For entering order for the protection .of a wife's earnings and properly .. .. •• .. .. .. .. ..050 Digitized by Microsoft® Table of Fees. 419 £ s. d. For the order under seal of the Court . . ,, .. . . 1Q For entering an order of the registrars of the Court pf Probate, the same fee as would be payable for entering a similar order made by the judge. For each appointment of a commissioner .. .. .. .,100 For a rule nisi for a new trial .. ..050 — • — FEES to be taken for their own use by the Proctors, Soli- citors and Attornies practising in Her Majesty's Court for Divorce and Matrimonial Causes. Citations, Subpoenas, Writs, and Service of same. £ s. d. Citation including praecipe .. .. .. .. .. ..079 Citation to see proceedings, including praecipe . . . . ..076 Certificate of service .. .. .. .. .. ..026 Subpoena ad testificandum and praecipe . , . . . . ..076 Subpoena duces tecum, if five folios of seventy-two words, or under, and praecipe .. .. .. .. .. .. ..076 If the subpoena exceeds five folios in length, for each additional folio of seventy-two words .. .. .. .. ..010 Writ of attachment, including praecipe .. .. .. ..076 Writ of sequestration, including praecipe . . . . . . ..076 Service of citation, petition, or subpoena, if within two miles of the place of business of the practitioner or of the person em- ployed to effect the service . . . . .... ..050 If beyond that distance, and not exceeding ten miles, for every mile one way . . . . . . , . ..010 Drawing and engrossing affidavit of service, if three folios of seventy-two words or under .. .. .. .. ..050 If above, for every additional folio, including a copy for the Court 014 In cases in which the person to be served shall avoid service, or shall reside beyond the jurisdiction, except in Scotland or Ire- land, a sum to he allowed for service according to the circum- stances. Instructions. Instructions for citations, petitions, answers or other pleadings, for interrogatories, special affidavits, or applications for an order for protection of a wife's earnings and property.. .. 6 8 Ditto to defend suit .. .. .. .. .. .. ..068 Ditto for brief, or case for hearing .. .. .. .. . . 13 4 If there are several witnesses examined, and the brief or case is necessarily long, an additional fee will be al- lowed. Pleadings. Drawing and engrossing petition, if ten folios of seventy-two words or under, including a copy to file.. .. . . ..100 If exceeding ten folios, for every additional folio, including a copy to file .. .. .. .. .. ..014 Drawing and engrossing .answers, replications and other subse- quent statements, petitions for alimony, and answers thereto, if ten folios of seventy-two words or under, including a copy to file 10 If exceeding ten folios, for every additional folio, includ- ing a copy to file .. .. .. .. .. ..014 Digitized by Microsoft® 420 Appendix HI, Copies of petitions, answers and other pleadings, also of exhibits, or other documents, at per folio of seventy-two words.. ,.004 If any exhibit or other document to he 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 writing, or copy fac- simile, or part of a folio .. .. .. .. ..004 Drawing the record, if fifteen folios of seventy-two words or under, including copy to file' .. .. .. .. . . 10 If exceeding fifteen folios, for every additional folio of seventy-two words, including copy to file . . ..008 Engrossing record to file, at per folio of seventy-two words, exclu- sive of parchment . . .. .. .. .. . ■ ..006 For case for motion, including fair copy for judge .. .. 10 If necessarily more than seven folios of seventy- two words in length, for every additional folio, including copy for the judge 14 Copy for adverse party, per folio of seventy- two words .. ..004 Drawing and engrossing demurrer, inclusive of the statement of any matter of law to be argued, for ten folios of seventy-two words or under . . . . . . . . . . . . ..0100 If exceeding ten folios of seventy-two words, for every ad- ditional folio of seventy-two words . . . - ..010 Copy of the issue on demurrer, at per folio of seventy-two words 4 Drawing bill of costs, per folio of seventy-two words, including copy for taxation .. .. .. .. .. .. ..010 Copy for the adverse party, per folio of seventy-two words . . 4 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 seventy- two words .. ..014 For perusing and abstracting pleadings, affidavits, exhibits, and other documents, per folio of seventy-two words .. ..004 Notices. All necessary notices, if three folios or under, inclusive of copy and service .. .. . . .. .. .. ..050 If exceeding three folios, for every additional folio, includ- ing copy and service .. .. .. .. ..010 In all cases where service of a notice is necessary beyond two miles of the place of business of the practitioner, or of the person employed to effect the service, the same fee as upon the service of a citation. Copy of summons or order of the judge, or rule nisi, and service 5 Attendances. On entering appearance .. .. .. .. .. ..068 To search for appearance to citation . , . . . . ..068 On counsel with brief, when the fee to counsel is one guinea . . 3 4 When the fee to counsel exceeds one guinea and is under five guineas 068 When the fee is five guineas and upwards.. .. .. .. 13 4 On consultation .. .. .. .. 13 4 On conference .. .. .. .. .. ,. ..068 Inpursuanceof notice to admit 6 8 For every hour after the first 6 8 On trial or hearing when cause is in paper and not tried or heard, or on motion in Court .. .. .. 13 4 Digitized by Microsoft® Table of Fees. 421 £ s. d. On trial or hearing .. 110 If it lasts the whole day 220 On taxation of bill of costs 13 4 If very long an additional fee will be allowed. On examination of witnesses under a commission : If in England or Wales, per diem .. .. .. ..220 If elsewhere 330 For all necessary attendances in chambers before the judge ordi- nary, or before a commissioner, or counsel, in the registry, or upon the adverse parties or practitioner, for which no other fee is herein allowed 068 Briefs, Cases for Hearing, Letters, 8;c. For drawing brief or case for hearing, per folio of seventy-two words .. .. .. .. .. .. .. ..010 For each copy, per folio of seventy-two words .. .. -.004 Every necessary letter during the dependence of the cause . . 3 6 Term fees, letters and messengers, each term in which any busi- ness is done .. .. .. ,, .. .. ..0 15 (1 1 i< to For maps or plans • . . . .. .. .. each from < to (.3 3 (0 10 Copies of same, if required . . . . . . . . each from < to U Affidavits, For drawing affidavit, if five folios of seventy-two words or under, including copy for the Court or registry.. .. .. ..068 If above five folios, for each additional folio, including copy for the Court .. .; 14 Interrogatories. For drawing the same, at per folio of seventy-two words . . 10 Copy thereof to be delivered to the examiner and filed, at per tolio of seventy-two words .. .. .. .. ..004 If it becomes necessary for proctors, solicitors or attornies 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 Courts of Common Law and Equity, as the case may be. FEES to be taken for the use of other Persons by the Proc- tors, Solicitors and Attornies practising in the Court of Divorce and Matrimonial Causes. Counsels' Clerks' Fees. Not to exceed as under : — £ s. d. Upon a fee to counsel under 5 guineas . . . . . . ..026 5 guineas and under 10 guineas .. .. . . ..050 10 guineas and under 20 guineas .. .. .. 10 20 guineas and under 30 guineas .. .. .. ..0150 30 guineas and under 50 guineas .. .. .. ..100 50 guineas and upwards— at per cent on the fee paid .. 2 10 Digitized by Microsoft® 422 Appendix III. On consultations : £ ». d. Senior's clerk •• .. •• . ■ •• ..076 Junior's clerk •• •• •• •• •• ..026 On general retainer . . . . . . • . ■ • • • ..0106 On common retainer.. .. .. .. .. .. ..026 On conference .. .. .. .. .. .. ..050 Witnesses' Expenses. Allowance to witnesses, including their board and lodging :— Common witnesses, such as labourers, journeymen, &c. &c. : If resident within five miles of the General Post Office, per diem.. .. .. .. .. .. ..050 If resident beyond that distance, per diem, from . . < to 1.0 7 6 Master tradesmen, yeomen, farmers, &c. ; If resident within five miles of the General Post Office, J perdiem,from \o 10 (0 JO If resident beyond that distance, per diem, from . . < to (.0 15. Auctioneers and accountants : If resident within five miles of the General Post Office, J per diem, from .. .. .. .. .. ' " I 1 1 n 10 10 6 If resident beyond that distance, per diem, from ..< to U i o Professional men : If resident within five miles of the General Post Office, per diem.. .. .. .. .. .. ..110 (2 2 If resident beyond that distance, per diem, from . . < to U S Clerks to attornies, or others : If resident within five miles of the General Post Office, per diem .. .. .. ,. .. ..0106 CO 15 If resident beyond that distance, per diem, from ..< to (.110 Engineers and surveyors : If resident within five miles of the General Post Office, per diem.. .. .. .. .. .. ..110 (1 1 If resident beyond that distance, per diem, from . . J. to If resident beyond that distance, per diem, from e>(° t 5 o ° • (o 10 (0 5 .1 to (.10 Police inspector : If resident within five miles of the General Post Office, per diem .. .. .. 050 Digitized by Microsoft® Examples op Bills op Costs. 423 £ s. d. 7 6 If resident beyond that distance, per diem, from ..-l to lo 10 Police constable : If resident within five miles of the General Post Office, per diem 030 If resident beyond that distance, per diem, from ■•{: (0 5 J to (0 7 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. Surrogates or commissioners for taking oaths : For administering oaths to each deponent . . ..016 For marking each exhibit annexed to an affidavit . . 10 (Signed) Chelmsford, C. Campbell. A. E. Cockburn. Fred. Pollock. Wm. Wightman. Ed. Vaughan Williams. Samuel Martin. C. Cresswell. EXAMPLES OF BILLS OF COSTS. Between John Jones . . . Petitioner. and Sarah Jones and William Smith . Respondents. Bill of Costs on behalf of Mrs. Jones, the Respondent, in a Suit for Dissolution of Marriage. [Filed 16th November, 1859.] A» £ ». d. 1859. £ s. d. May — . Instructions to defend.. .. .. ..068 Attending and retaining Serjt. A. .. .. 3 4 His fee and clerk . . . . . . ..136 The like attendance on and fee to Mr. C. .. 1 6 10 6 8 Attending the petitioner's solicitor, under- taking to accept service for the respondent 6 8 Perusing and considering copy citation served on us 3 Copy thereof for counsel . . . . ..030 10. Attendingin the registry entering appearance for Mrs. Jones 6 8 Paid stamp thereon .. .. .. ..026 Notice to petitioner's solicitor thereof .. 5 Paid for copy affidavit of the petitioner .. 2 Perusing and considering same . . ..020 Copy for counsel .. .. .. ..020 * Column A shows the items that might possibly be taxed off between party and party, but would be probably allowed between attorney and client. Digitized by Microsoft® 1 3 4 1 3 6 5 424 Appendix III. A» £ s. d. 1859. £ t. d. 3 4 May 10. Attending Mr. C. with the petition and affi- davit, and feeing him to advise as to same 3 4 13 6 His fee and clerk 13 6 Attending him when he advised that the peti- tion should be amended . . . . ..068 Drawing and engrossing summons to amend petition .. .. .. .. ..050 Attending in the registry therewith to be signed .. .. .. .- ..068 Paid stamp thereon .. .. .. ..026 Copy and service .. .. . . ..050 Copy of the summons for Mr. C. . . ..010 Attending him therewith and feeing him to attend the summons .. .. ..034 His fee and clerk . . . . . . ..136 Notice thereof to petitioner's solicitor, and service .. .. .. .. ..050 18. Attending summons, when the judge ordered the petition to be amended, by the state- ment of further particulars of the acts of adultery alleged to have been committed.. 6*8 Attending in the registry for order . . ..068 Paid for same .. .. .. ■• ..026 Copy and service on respondent's solicitor .. 5 Attending the petitioner's solicitor, receiving and perusing copy affidavit containing some particulars of the alleged adultery, and stating that further particulars could not be furnished.. .. .. .. ..034 Instructions for answer . - . . ..068 Drawing same and fair copy . . . . ..100 Instructions for affidavit in support of same 6 8 Drawing same and fair copy . . .. .. 13 4 Attending Mr. C. therewith, feeing him to peruse and settle answer .. .. ..034 His fee and clerk . . . . . . ..136 3 4 Engrossing the answer for the Court . . . • 3 4 Engrossing the affidavit to be sworn to ..034 Attending respondent to be sworn .. ..068 Paid commissioner's fee . . . . ..016 Attending in the registry filing answer and affidavit 6 8 Paid stamps thereon . . . . . . ..076 Copy of the answer for petitioner's solicitor.. 3 4 Attending him therewith . . . . ..068 Copy of the answer for counsel . . . . 3 4 Attending co-respondent's solicitor, procur- ing and perusing copy co-respondent's answer .. .. .. .. ..034 Attending petitioner's solicitor, receiving and perusing copy replication . . . . ..034 Copy thereof for counsel . . . . ..014 Instructions for rejoinder .. .. ..068 Drawing and engrossing same . . . . 10 * See note, page 423. Digitized by Microsoft® Examples of Bills or Costs. 425 A* £ s. d. 1859. £ s. d. May 18. Attending Mr. C, feeing to peruse and settle same .. . . .. .. .. ..034 His fee and clerk .. .. .. ..136 Attending in the registry filing same . . 6 8 Paid stamps tliereon . . . . . . ..050 Copy for the petitioner's solicitor, and attend- ing him therewith .. .. .. ..050 Attending petitioner's solicitor, receiving and perusing notice of his intention to move the Court for directions for trial . . ..034 Instructions for case to counsel to attend and move the Court to direct the cause to be tried with a common jury .. .. ..068 Drawing and engrossing case.. . . . • 10 Attending him therewith .. .. ..034 Paid his fee and clerk.. .. .. ..136 Attending the motion when the order was made as prayed by us .. .. .. 13 4 Attendingpetitioner's proctor receivingnotice of his having deposited the record and set down the cause for hearing.; .. ..034 Attending in the registry looking up the re- cord and inspecting same .. .. ..068 Attending petitioner's solicitors for copy thereof 068 Paid for same .. .. .. .. ..054 Perusing and considering same .. .. 5 4 Drawing and engrossing summons for taxa- tion of costs, and payment of money into Court to cover respondent's cost of hearing 5 Attending in the registry with the same to be entered and signed . . . . . . ..068 Paid stamp thereon .. .. .. ..026 Copy and service on petitioner's solicitor .. 5 Attending judge, when order made .. ..068 Attending in the registry for order .. ..068 Paid stamp thereon . . . . . . ..026 Copy and service .. .. •• -.050 Drawing this bill of costs and copy for the registrar .. .. .. .. ..0120 The like for the petitioner's solicitor.. .. 4 Attending in the registry to file bill of costs 6 8 Paid stamp thereon . . . . . . ..026 Attending for appointment to tax . . ..068 Notice thereof, and service on respondent's solicitor .. .. .. .. ..050 Attending taxing .. ., .. .. 13 4 Paid fee thereon . . . . . . ..060 Attending and agreeing the amount of costs . as taxed .. .. .. .. ..068 Attending receiving amount of taxed costs, and giving receipt for the same .. ..069 2 10 Many attendances, consultations, conferences and correspondence throughout the cause not before charged . . . . . . ..110 * See note, page 423. Digitized by Microsoft® 426 Appendix III. Omissions in former Bill. A* J & s. d. 1859. £ ». d. Nov. 22. Drawing case to counsel to advise on evidence Copy thereof for Serjt. A. . . . . . . — The like for Mr. C Attending Serjt. A. with the case and papers, and feeing him to advise on evidence .. 6 8 Paid his fee and clerk . . . . ..246 6 8 The like attendance on Mr. C 6 8 13 6 Paid his fee and clerk 13 6 Attending counsel in conference on the evi- dence, and receiving and perusing and con- sidering their opinion . . . . ..068 1859. Further Sill of Expenses on behalf of Mrs. Jones the Respondent.^ Instructions for brief, including — 12 attendances on Mrs. Jones the respondent 3 do. at Hackney, on Mr. James 3 do. at do. on Mrs. James 4 do. at Commercial Road, on Mr Roberts 3 do. at Greenwich, on Fanny Ellis . Total attendances. Attendance on other persons connected with the case Drawing brief .. .. .. .. .. .. 7 13 Copy thereof for Serjt A. 2110 The like for Mr. B 2110 The like for Mr. C 211 Drawing proofs .. .. .. .. .. . . 12 5 Copy thereof for Serjt. A. . . . . . . ..418 The like for Mr. B 4 18 The like for Mr. C 4 18 Attending Serjt. A. with brief and proofs .. . . 13 4 Paid his fee and clerk . . . . . . . . ..1650 The like attendance on Mr. B 13 4 Paid his fee and clerk .. .. .. .. . . 13 % The like attendance on Mr. C 13 4 Paid his fee and clerk .. .. .. .. .. 11 Drawing notice to produce certain letters addressed to . Mr. Jones .. .. .. .. .. ..070 Copy for service .. .. .. .. ,. ..024 Attending, serving same .. .. .. ..068 Copy for Serjt. A. .. .. .. .. ..024 The like for Mr. B 024 The like for Mr. C 2 4 * See note, page 423. f This bill of expenses is meant jnerely as a guide, and for suggestions. Digitized by Microsoft® Examples op Bills of Costs. 427 1859. £ ». d. Perusing, considering and abstracting notice to pro- duce served on us by petitioner's solicitors.. .. 18 Copy for Serjt. A 018 The like for Mr. B 18 The like for Mr. C 2 4 Michaelmas Term, 1859. Drawing and engrossing eight subpoenas ad test, and praecipes .. .. .. .. .. ..300 Attending in the registry, and procuring same to be signed and sealed .. .. -• •• ..068 Paid stamps and parchment . . . . . . ..018 Copy and service of subpoena on Mr. James at Street, and paid him his conduct money .. ..068 The like on Mrs. James, at Hackney .. .. ..068 The like on Mrs. Edwards, at Commercial Road .. 6 8 Copy of subpoena for service on Ann Davis .. ..018 Paid agent's charges for serving Ann Davis with sub- poena .. .. .. .. .. ■• ..073 Drawing subpoena duces tecum and praecipe . . ..076 Attending in the registry, procuring same to be signed and sealed .. .. .. .. .. ..068 Paid stamp thereon and parchment .. .. ..036 Copy and service thereof on Mr. Roberts .. ..068 Attending Serjt. A., making appointment for consul- tation 068 Paid his fee and clerk .. .. .. .. ..296 The like attendance on Mr. B 6 8 Paid his fee and clerk .. .. .. .. ..136 The like attendance on Mr. C 6 8 Paid his fee and clerk .. .. .. .. ..136 Attending the consultation .. .. .. ..0134 Termfee 15 Hilary Term, 1860. Jan. 11. Attending Serjt. A., and paying his refresher.. ..068 Paid his fee and clerk .. .. . . .. -.246 The like attendance on Mr. B 6 8 Paid his fee and clerk .. .. .. .. ..136 The like attendance on Mr. C. 6 8 Paid his fee and clerk .. .. .. .. ..136 Drawing and engrossing eigbt subpoenas ad test, and praecipes .. •• •• .• •• ..300 17. Attending in the registry and procuring same to be signed and sealed .. .. .... ..068 Paid stamps on parchment . . • . . . ..180 • Copy and service on Mr. James, at .. .. 6 8 The like on Mrs. James .. .. .. .. ..068 The like on Mrs. Roberts 6 8 The like on Mr. Lane, at 6 8 Paid agent's charges for serving Ann Davis with sub- poena .. .. .. .. •■ •« ..073 Drawing and engrossing one subpoena duces tecum and praecipe .. .. .. .. .. ..076 Attending in the registry, procuring same to be signed and sealed 068 Paid stamp and parchment . . . . . . ..036 Digitized by Microsoft® 428 Appendix III. I860. £ s- d. Jan. 17. Copy and service thereof on Mr. Roberts . . ..068 Perusing, considering and abstracting notice of motion of the co-respondent to have the cause tried by spe- cial j ury .. .. ..' .. .. ..018 Drawing case for counsel to attend on such motion . . 6 8 Attending Mr. C. therewith 6 8 Paid his fee and clerk .. .. .. .. ..136 23. Attending at Westminster on such motion, when the judge ordered that the cause should be tried by a special jury, if there was one in attendance, and if not, by a common jury .. .. .. 13 4 Paid cab hire and expenses . . . . . . ..030 Term fee 15 Easter Term, 1860. April 16. Attending Serjt. A., and paying him his refresher .. 6 8 Paid his fee and clerk .. .. .. .. ..246 The like attendance on Mr. B .068 Paid his fee and clerk .. .. .. .. ..136 The like attendance on Mr. C 6 8 Paid his fee and clerk .. .. .. .. ..136 24. Drawing and engrossing eight subpoenas ad test, and praecipes . . . . . . . . . . ..300 Attending in the registry and procuring same to be signed and sealed .. .. .. .. ..068 Paid stamp and parchment .. .. .. ..180 Copy and service of subpcena on Mr. James .. ..068 The like on Mrs. James, at Hackney .. .. ..068 The like on Mrs. Roberts, at Commercial Road .. 6 8 The like on Mr. Lane, at Holborn 6 8 Paid agent's charges for serving Ann Davis with sub- pcena .. .. . . .. .. ■• 6 10 Drawing and engrossing one subpcena duces tecum and prgecipe .. .. .. .. .. ..076 Attending in the registry and procuring same to be signed and sealed .. .. .. .. ..068 Paid stamp and parchment . . . . . . ..036 Copy and service on Mr. Roberts . . . . ..068 May 5. Attending at Westminster, cause in paper but not called upon .. .. .. .. .. ..110 ( Should have been charged in Hilary Term.) Clerk's attendance to look after witnesses .. .. 10 6 Mr. Alfred Parker, attendance as a witness . . . . 110 Attending at Westminster, cause in paper but not called on (error) .. .. .. .. ..110 Clerk's attendance to look after witnesses .. .. 10 6 Mr. Alfred Parker, attendance as a witness . . . . 110 Term fee 15 *0 Michaelmas Term, 1860. Attending Serjt. A., and paying him his refresher .. 6 8 Paid same and clerk's fee .. .. .. ..246 The like attendance on Mr. B 6 8 Paid his fee and clerk .. .. .. .. ..1S6 The like attendance on Mr. C .6 8 Paid his fee and clerk .. .. .. .. ..136 Drawing and engrossing eight subpoenas ad test and praecipes .. ■• .. .. . . ..300 Digitized by Microsoft® Examples or Bills of Costs. 429 I860. £ s. d Attending in the registry and procuring same to be signed and sealed .. .. .. .. ..068 Paid stamp and parchment .. .. .. ..180 Copy and service of subpoena on Mr. Jarads .. ..068 The like, on Mrs. James, at Hackney .. .. ..068 The like, on Mrs. Robejts, at Commercial Road .. 6 8 Copy subpcena for service on Ann Davis .. .. 18 Paid agent's charges for serving Ann Davis with sub- pcena 073 Drawing and engrossing one subpoena duces tecum and praecipe.. .. .. .. .. .. ..076 Attending in the registry and procuring same to be signed and sealed .. .. .. .. ..068 Paid for stamp and parchment .. .. .. ..036 Copy and service on Mr. Roberts .. •• ..068 Attending Serjt. A., and arranging for consultation ..068 Paid his fee and clerk .. .. .. .. ..296 The like attendance on Mr. B 6 8 Paid his fee and clerk .. .. .. .. ..136 The like attendance on Mr. C. .. .. .. ..068 Paid his fee and clerk .. .. .. .. ..136 Attending the consultation .. .. .. ..0134 Dec. 6. Attending at Westminster all day, cause in paper but not called on ; the petitioner's counsel asked to be allowed to withdraw the petition, and the judge re- fused permission, but allowed the cause to stand over 110 Clerk's attendance to look after witnesses .. .. 10 6 Mr. Alfred Parker, attendance as a witness .. ..110 Paid cab hire 030 Term fee IS Hilary Term, 1861. Jan. 11. Perusing, considering and abstracting notice of motion from the petitioner's solicitor to have the cause dis- missed .. .. .. .. .. .. 1 8 Copy for counsel .. .. .. .. .. ..018 Drawing case for counsel to appear on the motion and consent thereto on the petitioner's paying costs . . 6 8 Copy for counsel .. .. .. .. ..034 Attending counsel therewith .. .. .. ..068 Paid his fee and clerk .. .. .. .. ..'246 15. Attending in Court at Westminster, when the judge dismissed the petition with costs .. .. .. 13 4 Paid cab hire 030 Attending in the registry paying hearing fee .. .. 6 8 Paid same 15 Drawing and engrossing affidavit of increase . . 2 Attending to be sworn thereto .. .. .. ..068 Paid commissioner's fees .. .. .. ..016 Attending filing same .. .. .. .. ..068 Paid stamps thereon .. .. .. .. ..026 Copy for petitioner's solicitors .. .. .. 13 4 Attending them therewith .. .. .. ..068 Drawing bill of costs and copy for the registrar .. 1 15 Copy thereof for petitioner's solicitors . . .. .. 11 8 Attending in the registry to file bill of costs . . . . 6 8 Paid stamp thereon .. .. .. .. ..026 Digitized by Microsoft® 430 Appendix HI. 1861. £ ». d. Jan. 15. Attending for appointment to tax .. *. ..068 Notice thereof and service on petitioner's solicitors . . 5 Attending taxing.. .. .. .. .. .. 1 13 4 Paid fee thereon .. .. .. .. .. .. 17 6 Attending agreeing amount as taxed .. .. ..068 Many extra attendances, conjugations, writing letters, &c, throughout the cause, not hereinbefore charged 3 3 Termfee 15 Paid the following Witnesses their Viatics. Mr. and Mrs. James .. .. .. .. ..110 Mr. and Mrs. Roberts 10 6 Mr. Alfred Parker 110 Mrs. Edwards ..110 , 10 6 In Her Majesty's Court for Divorce and Matrimonial Causes. Sarah Jones Petitioner, v. John Jones Respondent. Bill of Costs of the Petitioner in a Suit for Dissolution of Marriage. A* Michaelmas Term, 1859. £ s. d. £ s. d. 110 Feb. — . Attending petitioner on her desiring to bring suit for dissolution of marriage, conferring many times very fully thereon, and taking her instructions .. .. .. -.110 6 8 Attending counsel appointing conference . . 6 8 16 Paid his fee and clerk 16 13 4 Attending same .. .. .. 13 4 Nov. — Instructions for petition .. .. ..068 Drawing same, fos. 22, and engrossing same 1 15 6 8 Instructions for affidavit in support of peti- tion : ..068 Drawing same and copy for the Court, fos. 22 19 4 Attending counsel with the petition to settle 6 8 Paid his fee 136 5 Letters, &c 5 Hilary Term, 1860. Attending petitioner on her being sworn to affidavit 068 Paid commissioner's fee thereon . . -.016 Attending in the registry, filing petition and affidavit 068 Paid stamps thereon . . . . . . .,076 Instructions for citation .. .. ..068 • See note, page 423. Digitized by Microsoft® Examples of Bills of Costs. 431 A* £ s. d. 1860. Citation and praecipe .. .. .. ..076 Attending in the registry therewith, procuring citation to be signed and sealed .. ..068 Paid stamps thereon . . . . . . , n , 5 Copy for service . . . . . . ..018 6 8 Attending in the registry, bespeaking office copy petition for service .. .. ..068 Paid fees thereon .. .. .. ..0166 Attending to get same sealed.. .. .. 6 8 Paid fees thereon . . . . . . ..050 Feb. 27. Writing respondent's solicitors, requesting that facilities should be afforded to effect personal service of the citation on re- spondent who was abroad, without adver- tising in the newspapers . . . . ..050 5 Mar. 1. Writing respondent's solicitors urging them to give such information as would enable me to employ an agent for service of cita- tion, and entering into undertaking not to abuse confidence .. .. .. ..050 5. In consequence of an offer from the re- spondent's solicitors as to the service of citation, attending petitioner thereon, and as to whether I might avail myself of the offer, and it was arranged that I should do so, upon certain terms, which 1 could state to respondent's solicitors .. .. ..068 Writing respondent's solicitors accordingly.. 5 5 13. Not having received any reply, writing re- spondent's solicitors again urging their attention .. .. .. .. ..050 5 19. On receipt of letter from respondent's soli- citors, writing petitioner informing of their assent to my proposition . . . . ..050 26. Writing respondent's solicitors for name and address of agent to whom I was to send citation for service . . . . . . ..050 27. Writing petitioner in reply .. .. ..050 31. Not having received the required information from Messrs. T. & Co., writing to the Rev. J. G., of Calais, for an introduction to an agent for service of the citation . . ..050 Postage 004 Apr. 2. Writing to him acknowledging the receipt of his communication . . . . . . ..036 Postage 4 Writing to Mr. Lewis, the agent named at Calais, with citation and copy, and copy petition for service . . . . . . ..050 Postage 3 4 Writing to Mr. T. informing him thereof .. 3 6 5 Affidavit of service 5 5 Writing to Mr. Lewis therewith and instruct- ing him as to indorsement, and suggesting * the amount of his charges .. .. ..050 • See note, page 423. Digitized by Microsoft® 5 5 4 3 6 2 6 6 8 1 1 3 4 4 1 1 3 6 1 3 3 4 6 432 Appendix III. A* £ s. d. 1860. £ s. d. 10 Apr. 2. Postage 010 Termfee,&c 15 Easter Term, 1860. 18. Writing to Mr. Lewis, remitting his charges and requesting him to furnish the affidavit of service .. .. .. .. ..036 Postage 004 110 Paid his charges 2 2 Certificate of service .. .. .. ..026 24. Attending, returning citation and filing affi- davit 068 Paid fee thereon . . . . . . ..050 Attending in the registry, searching for ap- pearance on behalf of respondents. . .. 6 8 Paid stamp 010 Perusingandconsideringanswerofrespondeot 14 Copy for counsel . . . . . . ..014 Attending Mr. B., feeing him to advise on re- spondent's answer .. .. .. ..034 Paid his fee and clerk . . . . . . ..136 Drawing replication to respondent's answer and copy for the Court . . • . ..100 Attending Mr. B., feeing him to settle same.. 3 4 Paid his tee and clerk ..136 Termfee,8ic 15 Trinity Term, 1860. 6 8 June 11. Attending petitioner as to the mode in which she wished the cause to be tried, and she desired special jury .. .. .. ..068 6 8 Instructions for case to move the Court to direct cause to be tried by oral evidence and a special jury .. .. .. ..068 Drawing same and copy for the Court .. 10 Attending in registry therewith .. ..068 Paid stamp thereon . . . . . . ..050 Notice of motion to Mr. T 5 Copy notice to file . . . . . . ..010 Paid filing 010 Copy case for counsel . . . . . . ..010 The like notice of motion .. .. ..010 16. Attending him therewith, and feeing him for motion 068 Paid his fee and clerk . . . . . . ..136 26. Attending Court when order made for special jury 13 4 Paid entering order of Court on motion . . 5 6 8 29. Attending petitioner, informing her the result of the motion, and conferring thereon .. 6 8 July 6. Drawing record and copy to file .. .. 10 Attending at registrar's with same for settle- * ment by registrar . . . . . . ..068 Paidfee 10 • See note, page 423. Digitized by Microsoft® Examples of Bills or Costs. 433 A* £ s. d. 1860. £ s. d. July 24. Engrossing record and parchment, fos. 5 ..026 Attending depositing record and setting down cause .. .. .. .. . . ..068 Paid stamp on depositing record . . . . 10 Paid stamp on setting dove n cause .. .. 5 Notice thereof to Mr. T., copy and service . . 5 Copy notice to file . . . . . . ..010 Paid stamp thereon . . . . . . ..010 Paid for copy minutes . . . . . . ..026 Attending for same .. .. .. ..068 Termfee, &c IS Hilary Term, 1861. 6 8 Mar. 2. Having received notice that cause would be in the paper on the 16th March, attending petitioner with notice thereof . . ..068 6 8 4. Attending petitioner in G — street, she being ill, conferring with her as to postponement of cause in consequence of her ill health . . 6 8 6 8 5. Attending petitioner, who was still ill, and she desired to have cause postponed, she being too ill to seek the witnesses. . . . 6 9 6 8 Instructions for notice of motion to postpone cause .. .. .. .. ..068 10 Drawing case to move the Court for post- ponement .. .. .. .. .. 10 Attending in the registry therewith .. .. 6 8 Paid stamp thereon . . . . . . ..050 6. Notice of motion to Mr. T. and service .. 5 Drawing affidavit of service .. .. ..068 Engrossing same .. .. .. ..010 Attending to swear same . . . . ..068 Paid oath 016 Paid filing 026 Copy notice to file . . . . . . ..010 7. Paid filing 10 Instructions for affidavit of petitioner . . 6 8 Drawing same and transcript, fos. 6.. .. 8 Engrossing same . . . . . . ..020 Attending commissioner, making appoint- ment for him to take affidavit at G street, she being ill and in bed . ■ ..068 Attending with him when affidavit sworn to at G street 6 8 Paid commissioner for exhibit . . . . 2 6 Paid commissioner for his attendance at G street 6 8 Paid filing affidavit 5 Copy case and affidavits for counsel.. .. 2 8 Attending him therewith . . . . ..068 Paid his fee and clerk . . . . ..246 13. Attending Court, motion made, cause post- poned until further order of Court .. 13 4 Paid entering order of Court on motion . . 5 Attending petitioner afterwards thereon . . 6 8 * See note, page 423. U Digitized by Microsoft® 6 8 5 5 6 8 1 6 8 1 6 2 6 1 1 6 8 8 2 6 8 434 Appendix III. A* £ ». d. 1861. £ s. d. 6 8 Mar. 25. Attending petitioner, conferring very fully as to the expediency of amending the petition with regard to the settlement, which had not been mentioned therein, and it was ar- ranged that we should have a consultation with counsel thereon . . . . ..068 6 8 Apr. 3. Attending appointing consultation . . . . 6 8 Attending same when it was considered it would be advisable to amend the petition by adding the particulars of the marriage set- tlement 13 4 2 9 6 Paid Serjt. N. fee and clerk 2 9 6 1 3 6 Paid Mr. B. his fee and clerk 13 6 6 8 9. Attending petitioner, informing her of the result of the consultation, and conferring with her thereon, engaged two hours .. 6 8 6 8 11. Attending petitioner as to certain evidence in a previous suit for divorce a mensa et thoro, and as to the expediency of making use thereof in the present instance .. 6 8 6 8 Attending counsel appointing conference thereon 068 13 4 Attending same, when it was decided to apply to the Court to allow the evidence to be received ,. .. ,. .. 13 4 16 Paid counsel fee and clerk . . . . ..160 15 Term fee, &c 15 Easter Term, 1861. 6 8 May 3. Attending petitioner for further particulars of evidence in former divorce suit in her pos- session .. .. .. .. ..068 10 Drawing case to move Court to allow the pe- tition to be amended, and for admission of evidence in divorce suit, and to appoint time for the cause to come on . . ..0100 6 8 Attending counsel therewith to peruse and settle Paid his fee and clerk . . . . . . 1 Attending in the registry therewith .. ..0 Paid fee thereon . . . . . . . . Notice of motion to Mr. T. and service . . Copy notice to file .. Paidfiling .. .. Copy case for counsel . . . . . . . . Attending him therewith . . . . Paid his fee and clerk .. .. .. ..2 Instructions for affidavit of petitioner in sup- port of motion . . . . . . . . Drawing same and transcript, fos. 5 . . . . Engrossing affidavit .. .. ,. ..0 Attending her to be sworn . . . . . . Paid commissioner's fee .. .. ..0 Paid filing * See note, page 423. Digitized by Microsoft® 6 8 5 5 1 1 2 6 8 2 4 6 6 8 3 6 6 8 5 5 1 1 2 6 8 4 6 6 S 6 8 1 8 6 8 1 6 2 6 A* £ s. d. 6 8 16 4 6 8 1 6 2 6 14 8 3 8 6 8 1 6 2 6 6 8 6 8 13 4 2 9 6 1 3 6 6 4 2 6 6 8 2 4 6 13 4 Examples of Bills of Costs. 435 ;i86i. £ s. d. May 3. Instructions for further affidavits of petitioner in support .. .. .. .. ..068 Drawing same and copy, fos. 12 .. .. 16 Engrossing same . . . . . . ..040 Attending petitioner to be sworn .. ..068 Paid commissioner's fee .. .. 1 6 Paid filing 026 Drawing affidavit of service, fos. 11 .. .. 14 8 Engrossing same .. .. •• ..038 Attending to be sworn . . . . ..068 Paid commissioner's fee . . . . ..016 Paid filing 026 18. Attending petitioner in long discussion on the matter, when she directed me to appoint a further consultation with Serjeant N. and Mr.B 6 8 Attending to appoint consultation . . ..068 20. Attending same 13 4 Paid fee to Serjt. N. and clerk .. ..296 The like to Mr. B 13 6 Briefing affidavits for counsel, fos. 17 .. 6 4 The like case and notice . . . . ..026 Attending counsel with brief. . •• . . 6 8 Paid his fee and clerk . . . . ..246 22. Attending Court when the motion made and amendment of petition was ordered .. 13 4 5 Paid entering order of Court on motion . . 5 Attending at Doctors' Commons bespeaking, &c, for office copy decree in suit a mensa etthoro 068 Paid for same .. .. .. .. ..026 6 8 Instructions to amend petition .. ..068 Drawing amendments, fos. 36 .. .. 1 16 6 8 Attending counsel therewith to peruse and settle 068 2 4 6 Paid his fee and clerk 2 4 6 25. Drawing case to move the Court for leave to use evidence given in divorce suit .. 10 Attendingin registry therewith .. .. 6 8 Paid fee on filing .. .. .. -.050 2 6 Paid filing affidavits 5 Notice of motion on Mr. T. . . . . ..050 Copytofile 10 Paid filing 10 Copy case for counsel .. .. .. ..026 4 Briefing affidavits, fos. 17 6 4 5 6 Drawing affidavit of service, fos. 11 .. .. 14 8 3 8 Engrossing same . . . . . . ..038 Attending to be sworn .. .. ..068 Paid commissioner's fee •• .. ..016 Attending counsel with brief .. .. ..068 Paid his fee and clerk.. .. .. ..246 6 8 Petitioner desiring a consultation as to the amendments of the petition, attending ap- pointing same .. .. . . ..068 • See note, page 423. u2 Digitized by Microsoft® 6 8 1 6 6 S 7 6 2 6 13 4 6 8 436 Appendix III. £ s. d. ••1861. £ f. d. 13 4 May 29. Attending consultation as to amending peti- tion with Serjt. N. and Mr. B 13 4 2 9 6 Paid Serjt. N. fee and clerk 2 9 6 13 6 The like to Mr. B 13 6 Attending Court, order made as moved .. 13 4 Paid entering order of Court on motion . . 5 6 8 Attending petitioner informing the result thereof 068 June 3. Engrossing amended petition, fos. 36 .. 12 6 8 Instructions for affidavit in support thereof. . 6 8 Drawing same, fos. 24 . . . . ..140 Engrossing same . . . . . . ..080 Attending petitioner swearing same.. . • 6 8 Paid commissioner's fee . . . . ..016 Attending filing petitioner's affidavit .. 6 8 Paid stamps on petition and affidavit*. .. 7 6 Notice of amending petition .. .. ..026 Attendingamending petition filed .. .. 13 4 Attending at Doctors' Commons for rule for special jury .. .. .. .. ..068 5 Notice to sheriff as to special jury, copy and service .. .. .. .. ..050 6 8 7. Attending obtaining appointment to nomi- nate .. .. 068 Paid under-sheriff fee thereon .. ..220 8. Notice to Mr. T. of appointment to nominate 6 8 Attending nominating. . .. .. •• 13 4 9. Attendingfor appointment toreduce.. ..068 Notice to Mr. T. thereof 5 Copy list of forty-eight persons for use .. 5 Attending inquiring after special jury and taking instructions to reduce .. ..068 Attending appointment to reduce .. .. 13 4 Making copy reduced list for sheriff .. ..026 6 8 Attending obtaining signature of Mr. T. to reduce list and signing same on behalf of petitioner .. .. .. .. ..068 6 8 Attending at under-sheriff's office bespeaking summons for jury and paying fees .. .. 6 8 Paidfees 4 16 Copy list of special jury as reduced for use . 2 6 The like to be annexed to record . . . . 2 6 Instructions for brief .. .. .. ..15150 Drawing same, fos. 258 .. .. ..12 8 Copy for Serjt. N 4 2 8 The like for Mr. B 4 2 8 The like of notice to produce .. .. ..050 Thelikeof notice toadmit(2 copies).. ..050 Attending Serjt. N. with his brief .. .. 13 4 Paid his fee and clerk . . .. .. .. 27 10 Attending Mr. B. with his brief .. .. 13 4 Paid his fee and clerk 17110 Subpoena against Mary Johnson, James John- son and John Davis . . . . ..076 Paid stamp and parchment . . . . ..046 * See note, page 423. Digitized by Microsoft® 2 2 6 8 13 4 6 8 5 5 6 8 13 4 2 C 4 14 2 6 2 6 10 10 4 6 Examples of Bills of Costs. 437 A* £ ». d. 1861. £ s. d. June 9. Service on Mary Johnson, and on James Johnson, and on John Davis .. .. 15 Subpoena against James Biggs, Emma Biggs, and Frederick Fisher . . . . ..076 Service on each .. .. .. ..0100 Paid stamp and parchment . . . . ..046 Attending with praecipe to be signed and sealed 068 Subpoena duces tecum against Joseph John- son .. . . .. .-' .. ..076 Paid for stamp and parchment . . ..046 Attending with praecipe subpoena to be signed and sealed .. .. .. .. ..068 Service thereof. . .. .. .. ..050 Attending to appoint consultation previous to cause coming on .. .. •• ..068 Paid fee to Mr. B. and clerk 13 6 Paid fee to Serjt.N. and clerk 2 9 6 Attending consultation ■• .. .. 13 4 Attending Court, cause in paper not called on 13 4 Attending Court, cause in paper but not called on 13 4 24. Notice to produce copy and service . . ..076 Notice to admit copy and service .. ..076 25. Attending Court, cause in paper but not called on 13 4 27. Attending Court, cause in paper opened ; Lord M. examined, also Colonel Keith, Emma Biggs, Mary Johnson, John Davis and Mrs. Jones, in part . . . . ..220 6 8 Attending to appoint consultation .. .. 6 8 13 4 Attending consultation with counsel .. .. 13 4 2 9 6 Paid Serjt.N. fee and clerk 2 9 6 13 6 The like to Mr. B 13 6 28. Attending Court, cause heard, verdict for the petitioner; jury found that the respondent had committed adultery with A. M., that he had been guilty of cruelty, and that he had deserted his wife . . . . . . ..110 13 4 Attending paying special jury .. .. 13 4 12 12 Paid special jury 12 12 Paid stamp on further hearing .. .. 10 Paid stamp on entering verdict on record .. 10 Finaldecree .. .. 10 6 8 July 1. Attending petitioner on result of trial .. 6 8 6 8 22. Attending petitioner as to making absolute the decree nisi and applying at the same time for alteration of settlement . . ..068 6 8 Nov. 12. Attending Mr. B. making appointment for conference thereon . . . . ..068 5 Writing petitioner, informing her thereof as she desired to be present .. .. ..050 2 9 6 PaidSerjt N. fee 2 9 6 1 3 6 The like Mr. B 13 6 * See note, page 423. Digitized by Microsoft® 438 Appendix III. A* £ s. d. 1861. £ ». d. 13 4 Nov. 19. Attending consultation one hour and a half, and it was arranged that motion should be made at once to make the decree final for the judge to deal with the settlements, spe- cially having regard to a claim on the £ mentioned in the settlement in re- spect of promises made in consideration of marriage .. .. .. .. ..0134 Term fee 15 Michaelmas Term, 1861. + Attending searching for notices of interven- tion and filing affidavits . . . . ..068 Paid search 020 Instructions for affidavit of petitioner in sup- port 068 Drawing same, fos. 22 .. .. .. .,120 1 3 6 Fee to counsel to settle 13 6 6 8 Attendinghim four hours .. .. ..068 Engrossing same . . . . . . ..074 Attending petitioner on her being sworn thereto 068 Paid commissioner's fee and exhibit.. .. 2 6 Paid filing 026 Drawing affidavit of self in support of mo- tion 060 Engrossing same . . . . . . ..020 Attending swearing same .. .. ..068 Paid oath 016 Paid filing 026 Drawing case to move the Court to make the decree absolute and to deal with the settle. ments „ .. 10 13 6 Fee to counsel to settle 13 6 6 8 Attendinghim 6 8 Attending in registry with case . . ..068 Paid stamp thereon .. .. .. ..050 Notice of motion to Mr. T. and service . . 5 Copy notice to file . . . . . . ..010 Paid filing 010 Attending bespeaking minutes of decree nisi 6 8 2 6 Paid 076 A ttending at accountant-general's bespeaking certificate of funds in Court in the suit of Jones v. Jones .. .. .. ..068 4 8 Drawing affidavit of service of notice of mo- tion, fos. 11 110 3 8 Engrossing same .. .. .. ..038 Clerk attending to be sworn .. .. ..068 Paid oath 016 Paid filing 026 16 8 Instructions for brief 16 8 * See note, page 423. + These are suggestions for items which may be incurred after the decree nisi and in the alterations of the settlements. Digitized by Microsoft® Examples of Bills of Costs. 439 A* £ s. d. 1861. £ s. d. 2 6 Drawing same, fos. 65 . . . . . . ..350 Briefing same (two copies) for counsel .. 2 3 4 The like case and notice of motion .. ..026 9 4 Copy mortgage deed referred to in petitioner's affidavit, fos. 28 9 4 Attending Serjt.N. with brief .. ..068 4 9 Paid his fee and clerk 11 Attending Mr. B. with brief 6 8 2 5 6 Paid his fee and clerk 6 11 Attending to appoint consultation . . . . 6 8 Paid SerjtN. fee and clerk 2 9 6 The like Mr. B 13 6 Consultation 13 4 Nov. 26. Attending Court, motion made when the decree for dissolution was made absolute but the Court took time to consider as to the settlements, the Judge Ordinary inti- mating that he considered our first attempt to establish a lien on the £ should be made in Chancery .. .. .. ..110 Entering order of Court on motion . . ..050 6 8 Instructions for case to equity counsel thereon 6 8 12 8 Drawing same and copy, fos. 17 .. .. 12 8 6 8 Attending counsel therewith 6 8 3 5 6 Paid his fee thereon 3 5 6 13 4 Conference with him .. .. .. . . 13 4 2 9 6 Paid his fee 296 13 4 Perusing counsel's opinion .. .. .. 13 4 In consequence of the opinion of equity counsel, attending petitioner, reading over same to her and arranging for consultation thereon 068 Paid Serjt.N. fee and clerk 2 9 6 ThelikeMr.B 13 6 Attending same .. .. .. 13 4 Instructions for brief to counsel to move the Court thereon 6 8 Drawing same .. .. .. .. 10 Attending him therewith .. .. ..068 Paid his fee and clerk . . . . . . ..246 Attending Court when the judge declined to hear counsel, except with due notice .. 13 4 Instructions for affidavit of petitioner in fur- ther support of motion of 26th November 6 8 Drawing same and transcript, fos. 19 .. 19 Engrossingsame .. .. .. ..064 Attending petitioner on her swearing same .. 6 8 Paid oath and exhibit 2 6 Drawing and engrossing summons for leave to file 5 Attending in registry procuring same to be signed and sealed .. ». .. ..068 Paid stamp 026 Copy and service on respondent's solicitors .. 5 Attending judge at chambers when order made 6 8 * See note, page 423. Digitized by Microsoft® 2 9 6 1 3 6 13 4 6 8 10 6 8 2 4 6 13 4 440 Appendix III. A* £ s. d. 1861. £ ». d. Nov. 26. Attending in registry for order .. ..068 Paid stamp ..026 Copy and service on respondent's solicitors .. 5 Paid filing affidavit 2 6 Attending filing . . . . . . ..068 Termfee 15 Hilary Term, 1862. Having received notice that the cause would be in the paper for judgment on 14th January, drawing brief to hear judgment 5 Two copies for counsel . . . . ..034 6 8 Attending Serjt. N. therewith . . ..068 24 6 Paid his fee and clerk 2 4 6 1 3 6 Paid him refresher 13 6 6 8 Attending Mr. B. with brief 6 8 13 6 Paid his fee and clerk . . . . . . ..136 7 8 Attending Court when order made .. . . 110 6 8 Attending petitioner thereon . . . . ..068 Drawing bill of costs and copy for the regis- trar.fos. 54 2 14 Copy thereof for respondent's solicitors .. 18 Attendingin the registry to file bill of costs ..068 Paid fee thereon . . . . . . ..026 Attending for appointment to tax . . ..068 Notice thereof and service on respondent's solicitors .. .. .. .. ..050 Attending taxing, two hours and over .. 10 Paid fee thereon 17 Attending, agreeing amount of costs as taxed 6 8 Termfee 15 2 2 Letters, messengers and incidental attend- ances and expenses not specifically charged 2 2 Paid the witness Mr. W. for his attendance. .110 The like Emma Biggs 110 The like John Davis 1 10 The like Mary Johnson 3 &c. &c. &c. Another Form of a further Bill of Expenses on behalf of Mrs. Jones, the Petitioner, subsequent to the Decree Nisi.\ 1861. £ >. d. Nov. — . Attending Mrs. Jones in conference with her and taking instructions to move the Court for a decree absolute and for permanent alimony, and in con- ference as to the various parties who could give us any information respecting Mr. Jones's income . . 6 8 * See note, page 423. f This form relates to costs incurred in making the decree absolute, and obtaining permanent alimony and the custody of » child ; the items are merely suggestions. Digitized by Microsoft® Examples or Bills of Costs. 441 1861. £ s . d. Nov. — . Attending !\Trs. Jones in conference as to her having the custody of her daughter A. L. Jones until she was entitled to choose her own guardian, and taking instructions to apply to the Court on the subject . . 6 8 8. Letter to the respondent's solicitors requesting to know if they would consent to an order being made for Mrs. Jones to retain the guardianship of her daughter, and perusing their reply declining to do so 3 6 15. Attending in the registry searching to ascertain whe- ther an appearance had been entered since the decree nisi 6 8 Paid search fee .. .. .. .. .. ..010 Drawing and engrossing notice of motion to make absolute the decree nisi and for permanent alimony, and for the custody of A. L. Jones . . . . ..050 Copy and service on the respondent's solicitor . . 6 8 Attending in the registry, filing the notice of motion and paid stamp thereon .. .. .. ..078 Motions for cases for motion .. .. .. ..068 Drawing same and copy for the judge .. .. . . 10 Attendingin theregistry, filingsame .. .. ..068 Paid stamp thereon .. .. .. .. ..050 Attending in the registry, searching and ascertaining that no affidavits had been filed by the respondent's solicitor .. .. .. .. .. .. ..068 Paid search fee . . . . . . . . ..010 Drawing affidavit as to search and non-appearance, and no affidavits being filed . . . . . . ..030 Engrossing same to be sworn to . . . . . . ..016 Oath thereto and attendance . . . . . . ..082 Attendingin theregistry, filing affidavit .. ..068 Paid stamp thereon .. .. .. .. ..026 Attending in the registry, bespeaking office copy decree nisi and paid for same .. .. .. .. ..068 Paid for same .. .. .. .. .. ..026 Perusing, considering and abstracting same .. ..018 Copy thereof for service on the respondent's solicitor . . 2 6 Attending serving them therewith .. .. ..068 Drawing affidavit as to service thereof . . . . ..030 Engrossing same to be sworn to . . .. .. ..016 Oath thereto and attendance . . . . . . ..082 Attendingin theregistry, filingsame ». .. ..068 Paid stamp thereon .. .. .. .. ... 026 19. Attending Serjt. N. and making an appointment for a conference as to the proofs required for the motion for alimony .. .. .. .. .. ..068 Paid his fee and clerk .. .. .. .. ..296 The like attendance on Mr. B 6 8 Paid his fee and clerk .. .. • ■ .. ..136 Attending long consultation with counsel as to the proofs required for the motion .. .. . . 13 4 Subpoena duces tecum in blank and praecipe . . ..076 Paid stamp and parchment . . . . . . ..036 Attending in the registry therewith and procuring same to be signed and sealed.. .. .. ..068 Copy thereof for service on Mr. Jones .. .. ..050 U 5 Digitized by Microsoft® 442 Appendix III. 1861. £ ». d. Nov. 19. Attending in the City, serving Mr. Jones with copy subpoena and paid his conduct money . . .. H 1 Subpoena ad test, in blank and praecipe .. ..076 Paid stamp and parchment .. .. .. ..036 Attending in the registry therewith and procuring same to be signed and sealed .. .. .. ..068 Copy thereof for service on Mr. G. . . . . ..026 Attending in the City, in conference on Mr. J. G., in- specting Mr. Jones's proposal for the loan of £, on the security of his wharves and premises, and serving Mr. G. with subpcena to attend at the motion .. .. .. .. ■■ .. •• 13 4 Paid his conduct money .. .. .. .. ..110 Copy of the subpoena on Mr. H... .. .. ..026 Attending at the Commercial Road, serving Mr. S. with subpoena .. .. . . .. .. ..0134 Paid bis conduct money .. .. .. .. ..0106 Paid cab hire and expenses .. .. .. ..026 Instructions for case for the motion including several attendances on the petitioner, three attendances on Mr. S. at and at , two attendances on Mr. F. in the City, two attendances on Mr. R. in the City, one attendance on Mr. G. in the City, one attendance on Mr. Baker in the City, one attend- ance on Mr. R. in the City, one attendance on Mr. G. in the City, one attendance on Mr. S. B. in the City 3 3 Drawing case .. . • ■• .. . . ..440 21. Copy thereof for Serjt.N 18 The like for Mr. B 18 Drawing proofs of the witnesses .. .. ..100 Copy thereof for Serjt. N 6 8 The like for Mr. B 6 8 Attending Serjt. N. with the case and papers and feeing him for the motion . . . . . . ..068 Paid his fee and clerk .. . . .. .. 5 10 The like attendance on Mr. B 6 8 Paid his fee and clerk .. .. .. .. ..356 26. Attending in Court at Westminster when the motion stood over at the suggestion of the judge, in order that the parties might endeavour to come to an arrangement as regards permanent alimony .. 110 Paid cab hire and expenses .. .. .. ..030 Hilary Term fee, letters and messengers .. .. 15 Letter to Mrs. Jones informing her thereof and with an appointment to attend on us .. .. ..036 Attending Mrs. Jones in conference with her as to the amount of permanent alimony we should apply for and advising thereon . . . . . . ..068 27. Attending in the City on the respondent's solicitors in conference with them, and when they offered Mrs. Jones 50/. per annum which we declined .. .. 13 4 Dec. 2. Attending Mr. B., in conference with him as to inspect- ing Mr. Jones's books, and as to what offer should be made as to the inspection thereof . . .. ..068 16. Letter to the respondent's solicitors for an appoint- ment to inspect Mr. Jones's books .. .. ..036 Digitized by Microsoft® Examples of Bills of Costs. 443 „ 1861. £ s , d , Dec. 22. On receipt of a letter from the respondent's solicitors requesting the names of our accountants, letter to them therewith and thereon 3 6 On receipt of letter from the respondent's solicitors, informing us that they should only allow one ac- countant to examine Mr. Jones's books, letter to 1862. them thereon 3 6 Jan. 5. Attending in the City on Messrs. F. & Co., account- ants, in long conference with them and making arrangements for them to examine Mr. Jones's books 13 4 Letter to the respondent's solicitors, informing them that one of the firm of Messrs. F. & Co. would examine Mr. Jones's books and requesting an ap- pointment .. .. .. .. .. ..036 Attending in the City on Mr. G., inspecting the sur- veyor's report as to Mr. Jones's wharves and be- speaking copy thereof. . .. .. .. ..086 Attending Mr. G. on receipt of copy of the surveyor's report and paid him for the same ... . . ..068 Paid for the same .. .. .. .. ..110 Perusing and considering the surveyor's report .. 3 8 Copy thereof for the accountant.. .. .. ..038 Drawing instructions for the accountant's guidance in examining Mr. Jones's books .. .. .. 13 4 Copy thereof for him .. .. .. .. ..068 Attending Mr. F., the accountant, therewith, and in long conference with him thereon . . . . ..068 10. Attending Mr. F., in conference with him, as to ana- lyzing the accounts called charges in Mr. Jones's books for the years 1857, 58, 59 and 60 .. ..068 11. On receipt of letter from the respondent's solicitors, informing us that Mr. Jones would not consent to an inspection of his books, except we gave him an undertaking not to apply for costs unless we suc- ceeded in disproving his statement as to the amount of his income. Letter to Mrs. Jones, informing her thereof and advising thereon . . . . . . ..036 13. Letter to Mrs. Jones with an appointment to attend on us 3 6 Attending Mrs. Jones in conference with her and taking instructions to give the undertaking required by the respondent's solicitors and to proceed at once with the investigation of Mr. Jones's books .. 6 8 18. Attending Mr. F., in conference and instructing him to proceed with the investigation of Mr. Jones's books 6 8 Letter to therespondent'ssolicitorsfor the alimony due to Mrs. Jones 036 24. Attending Mr. F., in conference as to his investigation of Mr. Jones's books .. .. .. .. ..068 Feb. — . Letter to Mr. F., requesting him to let us have his report at once .. .. .. .. .. ..036 Perusing, considering and abstracting report . . ..048 Attending the accountant and paying his charges for the examination of Mr. Jones's books . . ..068 Attending in the City on the respondent's solicitors, informing them that we should move the Court for Digitized by Microsoft® 444 Appendix III. 1862. i £ s. d. Feb. — . permanent alimony, and requesting to know if they would make us an offer of an adequate allowance .. 6 8 Attending in the registry, searching to ascertain whe- ther an appearance had been entered . . ..068 Paiil search fee . . . . . . . . . . ..010 Drawing and engrossing notice of motion to make ab- solute the decree nisi and for permanent alimony . . 5 Copy and service on the respondent's solicitors . . 6 8 Attending in the registry filing the notice of motion and paid stamp thereon . . . . . . .078 Instructions for case for motion.. .. .. ..068 Drawing same and copy for the judge .. .. .. 10 Attending in the registry filing same .. .. ..068 Paid stamp thereon .. .. .. .. ..050 Attending in the registry searching and ascertaining that no affidavits had been filed by the respondent's solicitors .. .. .. .. .. ..068 Paid search fee . . . . . . . . . . ..010 Drawing affidavit as to search and non-appearance, and no affidavits been filed . . . . . . ..030 Engrossing same to be sworn to . . . . ..010 Oath thereto and attendance .. .. . . ..082 Attending in the registry filing affidavit . . . . 6 8 Paid stamp thereon .. .. .. .. -.026 Subpoena duces tecum against Mr. S. and praecipe . . 7 6 Paid stamp thereon and parchment . . . . ..036 Attending in the registry procuring same to be signed and sealed .. .. .. .. .. ..068 Copy thereof for service .. .. .. .. ..026 Attending in the City, serving Mr. S. with subpoena. .068 Paid him his viatics .. .. .. : ..110 Drawing and engrossing certificate of service . . ..026 Subpoena duces tecum against Mr. G. and praecipe .. 7 6 Paid stamp thereon and parchment . . . . ..036 Attending in the registry procuring same to be signed and sealed .. .. .. .. .. ..068 Copy thereof for service .. .. .. .. ..026 Attending in the City, serving Mr. G. with subpoena.. 6 8 Paid him his viatics .. .. .. .. ..220 Drawing and engrossing certificate of service . • . . 2 6 Subpoena ad test, in blank and praecipe . . ..070 Paid stamp thereon and parchment . . . . ..036 Attending in the registry procuring same to be signed and sealed .. .. .. .. .. ..068 Copy thereof for service .. .. .. .. ..026 Attending on Messrs. F. & Co. in conference with them and serving their clerk Mr. C. with subpoena .. 6 8 Paid Mr. C. conduct money .. .. .. ..0106 Drawing notice to the respondent's solicitors to produce at the hearing certain letters written by us to them 3 Copy thereof and service on the respondent's solicitors 6 8 Instructions for case for the motion including several attendances on Mrs. Jones; one attendance on Mr. R. in the City, three attendances on Mr. G. in the City, three attendances on Mr. G. S. in the City, eleven attendances on Messrs. F. & Co. in the City . Two attendances on Mr. S. at ; two attendances on Messrs. L. T. & Co. in the City ; one attendance Digitized by Microsoft® Examples of Bills of Costs. 445 1862. £ „. d . Feb. — . on Messrs. G. in the City ; one attendance on Mr. W. in the City ; two attendances on Messrs. S. in the City; one attendance on Mr. F. at ; one at- tendance on Mr. K. in the City ; one attendance on Mr. R. in the City ; one attendance on Mr. S. in the City Cab hire and sundry expenses . . . . . . ..550 Drawing case . . . . . . . . . . ..5140 Copy thereof for Serjt. N 1 18 The like for Mr. B 1 18 Drawing proofs of the witnesses .. .. .. 2 12 Copy thereof for Serjt. N. 17 4 The like for Mr. B 17 4 The like of the accountant's report for Serjt. N. .. 14 8 The like for Mr. B 14 8 The like of surveyor's report as to value of wharf for Serjt. N 038 The like for Mr. B 3 8 Attending Serjt. N. with the case and paper, and feeing him for the motion 068 Paid his fee and clerk .. .. .. .. ..7120 The like attendance on Mr. B 6 8 Paid his fee and clerk .. .. .. .. .. 5 10 Attending Serjt. N., and making an appointment for a consultation .. .. .. .. .. ..068 Paid his fee and clerk .. .. .. .. ..296 The like attendance on Mr. B 6 8 Paid his fee and clerk .. ; .. .. ..136 24. Attending consultation with counsel, when they sug- gested examining Mr. F. and Mr. J. as to the result of their investigation of Mr. Jones's books.. .. 13 4 Paid for hire of room .. .. .. .. ..050 Copy subpoena for service on Mr. J. .. .. ..026 Attending Mr. J. in conference with him as to the evi- dence and serving him with subpoena .. ..068 Drawing proof of his evidence .. .. .. .. 15 Copy thereof for Serjt. N. 5 The like for Mr. B 5 Attending both counsel therewith .. .. ..068 Attending at Mr. B.'s chambers, ascertaining that he was absent on the circuit .. .. .. ..068 Drawing telegram to Mr. B. informing him that the case would come on to-morrow . . . . ..034 Attending despatching same to him •• . . ..068 Paid for same .. .. .. .. .. ..050 Attending in Court all day, when the case was partly heard 330 Paid cab hire and expenses • • . . • . ..060 Notices to four witnesses to attend on the 25th instant 10 Attending Serjt. N., paying his refresher fee for further hearing.. .. .. .. .. .. ..068 Paid his fee and clerk .. .. .. .. ..356 The like attendance on Mr. B 6 8 Paid his fee and clerk .. .. .. .. . 246 25. Attending in Court all day, when the evidence and ar- guments were concluded, and the judge reserved his judgment .. .. .. .. .. ..330 Paid cab hire and expenses .. . . .. ..050 Digitized by Microsoft® 446 Appendix III. 1862. £ s. d. Feb. 25. Attending in the registry inspecting the entry of the decree .. .. • • •• .. .. ..068 Paid for entering same .. .. .. .. ..050 Mar. 1. Letter to the respondent's solicitors, with an appoint- ment for Mr. Jones to see his daughter .. ..036 5. On receipt of letter from the respondent's solicitors, with an appointment for Mr. Jones to see his daughter, copy thereof for Mrs. Jones, and letter to her therewith and thereon . . . . . . ..050 21. On receipt of letter from the respondent's solicitors as to Mr. Jones seeing his daughter, copy thereof for Mrs. Jones, and letter to her therewith and thereon 5 28. On receipt of letter from Mrs. Jones, with an appoint- ment for Mr. Jones to see his daughter, letter to the respondent's solicitors informing them thereof • . 5 Apr. 3. On receipt of letter from the respondent's solicitors with further appointment for Mr. Jones to see his daughter, copy of the letter for Mrs. Jones, and letter to her therewith .. .. .. .. ..050 On receipt of letter from Mrs. Jones, copy thereof for the respondent's solicitors, and letter, to them there- with 050 7. Attending, receiving, perusing and considering notice of appointment for the bearing .. .. ..034 Attending Serjt. N., and feeing him to attend the judgment .. .. ■ • .. .. ..068 Paid his fee and clerk .. .. .. .. ..246 The like attendance on Mr. B 6 8 Paid his fee and clerk . . .. •• .. ..246 Attending in Court at Westminster, when the judge awarded the petitioner £ per annum, with costs, except as to the expenses of examining the respon- dent's books, and made the decree absolute for the dissolution of the marriage .. .. .. .. 13 4 Paid cab hire and expenses . . . . . . ..030 Attending in the registry inspecting the entry of the decree 068 Paid entering same .. .. .. .. ..050 Attending Mrs. Jones, informing her of the decree and advising thereon .. .. .. .. ,.068 Michaelmas Term fee, letters and messengers, &c. .. 15 Attending the respondent's solicitors in conference, and when they informed us that they should object to pay alimony pendente lite after the decree nisi had been pronounced, and informing them that we should take out a summons for the payment of the alimony up to the time the decree absolute was made . . ..068 Drawing and engrossing summons accordingly . . 5 Attending in the registry procuring same to be entered and signed .. .. .. .. .. ..068 Paid stamp thereon .. .. ,. .. ..026 Copy and service thereof on the respondent's solicitors 5 Drawing case to counsel to attend the summons .. 12 Copy thereof for Mr. B 6 Attending Mr. B. therewith, and feeing him for the summons .. .. .. .. .. ..068 Paid his fee and clerk .. .. .. .. ..246 Digitized by Microsoft® Examples of Bills of Costs. 447 1862. £ s . d. May 7. Letter to the respondent's solicitors informing them that we should attend the summons by counsel . ■ 3 6 10. Attending in Court at Westminster, when the judge having heard counsel ordered the alimony pendente lite to be paid up to the time the decree absolute was made 13 4 Paid cab hire and expenses • • . . . . ..030 Paid stamp on order .. .. .. .. ..026 Copy and service.. .. .. .. .. ..050 Attending Mr. G., bespeaking copies of the lease and deeds relating to Mr. Jones's wharves .. ..068 20. Letter to the respondent's solicitors, requesting them to send us the alimony due to Mrs. Jones . . ..036 Attending the respondent's solicitors, receiving the amount of alimony due and giving a receipt for the same 069 June — . Letter to the respondent's solicitors, requesting them to send us the quarter's alimony due at Christmas last " 036 21. Attending Mr. G., obtaining copies of Mr. Jones's title deeds, and paid for the same . . . . . . ..068 Paid for the same 8 18 Perusing and considering and abstracting copy assign- ment from Mr. Y. to Mr. S 14 8 The like, of lease from Mr. W. to Messrs. Y. and L... 15 4 The like, of lease of three houses in Pimlico . . .. 13 4 The like, of copy counterpart of lease of premises in Pimlico 16 8 The like, of copy assignment of premises in Pimlico . 16 8 The like, of copy counterpart lease of three messuages in St. George's, Pimlico .. .. .. ..094 The like, of copy assignment of leasehold premises in Pimlico 094 The like, of copy lease two premises situate St. Mary's, Pimlico 18 The like, of copy mortgage of premises in Pimlico .. 18 23. Further letter to the respondent's solicitors, request- ing them to send us the alimony due to Mrs. Jones 3 6 25. On receipt of letter from Mrs. Jones, letter to her ad- vising as to our application to the respondent's soli- citors for the alimony due .. .. .. ..036 On receipt of letter from the respondent's solicitors enclosing cheque for Mrs. Jones's alimony, made payable to her order in her maiden name of , letter to them returning the cheque, requesting them to make it payable to Mrs. Jones in her married name, as she could not legally take her maiden name again .. .. .. .. .. ■• ..036 Attending the respondent's solicitors receiving amount of alimony due to Mrs. Jones and giving a receipt for the same .. .. .. .. •• ..069 Letter to Mrs. Jones, with cheque for her alimony and thereon .. .. .. .. •■ •• ..03 6 Drawing abstract . . .. .. .. .. ..6120 Fair copy thereof for counsel . . . . • . ..240 Instructions for deed securing the annuity of £ to Mrs. Jones 13 4 Drawing same .. ■■ .• •• •• ..3 14 Digitized by Microsoft® 448 Appendix III. 1862. £ s. a. June 25. Fair copy thereof for counsel .. .. .. ..148 Drawing instructions for counsel to settle deed . . 110 Fair copy thereof for counsel .. .. .. 10 6 Attending Mr. H. with the abstract annuity deed and instructions, and feeing him to settle same . . ..068 Paid his fee and clerk . . . . . . . . ..5100 Attending Mr. H. and feeing him for a conference on the deed 6 8 Paid his fee and clerk • ■ •• .. .. ..136 Attending Mr. H. in conference on the deed and finally settling same .. .. . • .. ..068 Letter to the respondent's solicitors requesting to know whether they wished to have a copy of the deed, and perusing their reply, stating that they should require a copy .. •■ .. .. .. .. ..036 Fair copy annuity deed as settled for the respondent's solicitors .. .. •• .. .. ..148 Hilary Term fee, letters and messengers, &c. . . .. 15 28. Letter to the respondent's solicitors, with copy annuity deed, and advising thereon . . . . . . ..036 July 17. Letter to the respondent's solicitors requesting to know whether they approved of the draft deed sent them .. .. .. .. ■■ ..036 27. Letter to the respondent's solicitors requesting them to return us the deed, and make an appointment to execute the same .. .. .. .. ..036 28. Letter to the respondent's solicitors requesting them to send us the amount of Mrs. Jones's alimony due on the 24th inst 036 Attending and receiving the amount of alimony due to Mrs. Jones, and giving a receipt for the same . . 6 9 29. On receipt of letter from the respondent's solicitors, informing us that they had laid the deed before their conveyancer to settle; letter to them inform- ing them that the deed had been settled by one of the counsel of the Court of Chancery, and that we should not allow the deed to be altered by any one except by him .. .. .. .. .036 On receipt of annuity deed from the respondent's solicitors, engrossing same for execution . . ..148 Drawing and engrossing summons for an order upon the respondent to execute the deed . . . . 5 Attending in the registry, procuring same to be en- tered and signed .. .. .. .. ..068 Paid stamp thereon .. .. .. .. ..026 Copy and service .. .. .. .. ..050 Attending summons at Westminster, when the judge ordered the deed to be executed within three days from the time it should be sent to the respondent's solicitors engrossed .. .. .. .. ..0134 Paid cab hire and expenses .. .. . . ..030 Paid stamp on order .. .. .. .. ..026 Copy and service .. .. .. .. ..050 Aug. 3. Letter to the respondent's solicitors with the en- grossment of the annuity deed, and for an appoint- ment to execute same .. •* .. ..036 On receipt of letter from the respondent's solicitors with an appointment to execute the deed. Attend- Digitized by Microsoft® Examples of Bills of Costs. 449 1862. Aug. 3. 12. £ *. ing in the City on the respondent's solicitors, when Mr. Jones executed the deed .. .. •• 13 Paid cab hire .. .. .. .. .. ..01 Letter to Mrs. Jones, informing her that Mr. Jones had executed the deed, and with an appointment for her to attend and execute same . . ..03 Attending Mrs. Jones on her executing the deed . . 6 Drawing this bill of costs, and copy for the registrar 2 19 Copy thereof for the respondent's solicitors .. .. 19 Attending in the registry, filing bill of costs . . 6 Paid fee thereon . . . . . . . . ..02 Attending for appointment to tax •• .. ..0 6 Notice thereof and service • • . . . . ..05 Attending taxing .. .. .. .. .. 13 Paid fee thereon .. .. .. .. ..15 Attending and agreeing the amount of costs as taxed 6 Attending the respondent's solicitors receiving taxed costs, and giving a receipt for the same . . ..06 Easter Term fee, letters, messengers, &c. .. .. 15 Postage and other petty disbursements .. .. 10 Fees of affidavit of increase . . . . . . ..29 Small Items. £ s. d. Drawing affidavit of increase .. 19 Oath and attendance .. . . ..082 Attending filing .. .. ..068 Paid stamp thereon .. .. ..026 Copy for respondent's solicitors . . 6 4 Attending them therewith . . ..068 £2 9 4 In her Majesty's Court of Divorce and Matrimonial Causes. Between John Jones . . . . and Mart Jones and John Smith . A* Petitioner, Respondents. Costs of Co-Respondent. Easter Term, 1860. Instructions to defend co-respondent Attending entering an appearance Paid Preparing and filling up summons to show cause why petition should not be amended by giving dates of alleged acts of adultery, and attending issuing Paid Copy for the judge Copy and service on petitioner's solicitor .. Perusing and abstracting petition . . * See note, page 423. s. d. 6 8 6 8 2 6 6 8 2 9 2 2 6 3 4 Digitized by Microsoft® 450 Appendix III. A» £ s. d. 1860. £ s. d. 3 4 Brief copy 3 4 Term fee 15 Trinity Term, 1860. Attending summons for dates, judge made order ..068 Attending drawing same up . . . . ..068 Paid 026 Copy and service .. .. .. ..050 Preparing and filling up summons for time, and attending issuing . . . . ..068 Paid 053 Copy for the judge .. .. .. ..020 Copy and service .. .. .. ..026 Attendingsummons for time, judge adjourned same till Wednesday next, petitioner not having complied with order to furnish dates 6 8 Perusing and abstracting particulars fur- nished by petitioner .. .. ..034 3 4 Brief copy 034 Particulars furnished by petitioner being un- satisfactory, preparing and filling up sum- mons for further particulars and attending issuing .. .. .. .. ..068 Paid 5 3 Copy for judge.. .. .. .. ..020 Copy and service . . . • . . ,.026 Copy particulars for judge . . . . ..020 Attending summons for further particulars ; order made for petitioner to file affidavit that he could not give further particulars.. 6 8 Attending drawing up order .. .. .. 6 8 Paid .. •• 026 Copy and service . . . . . . ..050 Paid for adjourned summons for time . . 2 6 Attending adjourned summons for time to answer order made for a week after peti- tioner had made affidavit .. .. ..068 Attending drawing up order for time . . 6 8 Paid 026 Copy and service . . . . . . ..050 Perusing and abstracting affidavit that no further dates could be given . . ..034 Brief copy .. .. .. .. ..034 6 8 June 17. Instructions for answer 13 4 Drawing and engrossing same . . ..100 Fee to counsel to settle . . . . ..136 Attending him.. .. .. .. ..068 Attending filing 6 8 Paid filing 050 3 4 Abstracting answer . . . . . . ..034 Copy answer for service on petitioner .. 3 4 18 Attending petitioner's solicitor therewith .. 6 8 * See note, page 423. Digitized by Microsoft® Examples of Bills op Costs. 451 A* £ s. d. I860. £ s . d. 6 8 June 17. Attending respondent's solicitors upon their requesting copy of co-respondent's answer, which we promised to let them have, and requesting they would let us have copy of respondent's answer, which they promised 6 8 Copy answer for respondent's solicitors ac- cordingly .. .. .. .. ..034 6 8 Attending them therewith, when they handed us copy respondent's answer .. ..068 Perusing and abstracting same .. .. 4 Brief copy, two sheets 6 8 "34 Brief copy co-respondent's answer . . . . 034 Perusing and abstracting replication . . 3 4 3 4 Brief copy 034 6 8 July — . Instructions to Mr. B. to attend Court on motion to take judge's directions as to mode of taking the evidence in this cause 13 4 Fee to him and clerk . . .. .. ..136 Attending him 6 '8 Attending Court when judge directed cause to be tried by jury .. .. .. .. 13 4 Term fee 15 Michaelmas Term, 1860. 10 10 Instructions for brief 15 15 12 5 Drawing same, fos. 365 18 5 8 10 Three brief copies, fos. 401 each . . . . 20 1 6 8 Three copies brief petition and answer and replication .. .. .. .. ..100 3 4 The like, of particulars of adultery .. .. 10 The like, affidavit in support .. .. 10 Fee to Serjt. A., with brief and clerk . . 22 Nov. — . Attending him.. .. .. .. ..0134 Consultation fee and clerk .. .. ..296 Attending him and to appoint . . ..068 Fee to Mr. C, with brief and clerk .. .. 8 13 Attending him 6 8 Consultation fee and clerk . . . . ..136 Attending him and to appoint .. .. 6 8 Fee to Mr. B. and clerk 110 Attending him 6 8 Consultation fee and clerk . . . . ..136 Attending him and to appoint .. ..068 17. Attending, searching cause same stood thir- teen in the list .. .. .. ..068 21. Having received notice of record, having been amended, attending, inspecting same 6 8 Attending at counsel's chamber, amending briefs 068 6 8 Attending, searching how cause stood ..068 6 8 The like 068 13 4 Attending consultation, but Mr. B. not at- tending another to be fixed .. .. 13 4 6 8 Attending Serjt. A., Mr. B. and Mr. C, fix- ing fresh consultation . . . . ..068 11 6 8 1 3 6 6 8 See note, page 423. Digitized by Microsoft® 452 Appendix III. A* £ s. d. 1860. £ s. d. 6 8 Nov. 21. Attending co-respondent, conferring on tlie occasion, when he took Mr. Jones to on horseback, accompanied by Mr. Jones's groom, and the necessity there was that the landlord should be found out to obtain his evidence, and co-respondent instructed us to attend at on the subject . . ..068 110 Journey to and from , and interviews with the landlord and the housekeeper, conferring with them when there was another housekeeper who was there at the time, whose address they would obtain and let us know.. .. .. .. ..110 15 Paid expenses 15 6 8 Dec. — . Attending, searching how cause stood . • 6 8 6 8 Attending Serjt. A., Mr. B., Mr. C, postpon- ing consultation . . . . . . ..068 10 Term fee 15 Hilary Term, 1861. Jan. — . Attending, searching cause . . . . ..068 Subpcena ad test. . . . . . . ..070 Copy and service on Mrs. M., at . . 10 7 Paid her 8 2 4 6 Refresher to Serjt. A 2 4 6 8 6 Attending him 6 8 1 3 6 The like, Mr. B 13 6 6 8 Attending him 6 8 13 6 The like to Mr. C . . ..136 6 8 Attending him 6 8 6 8 Attending, searching how cause stood . . 6 8 6 8 Attending, searching how cause stood .. 6 8 6 8 Attending, searching how cause stood .. 6 8 6 8 Attending, searching how cause stood . . 6 8 Writing Mrs. M. she need not attend till she heard from us . . . . . . ..036 10 Term fee 15 Easter Term, 1861. 2 4 6 Refresher to Serjt. A. 2 4 6 6 8 Attending him ' 068 1 3 6 The like, Mr. B 13 6 6 8 Attending him 6 8 13 6 The like, Mr. C 13 6 6 8 Attending him 6 8 6 8 Attending Mr. H., appointing fresh consul- tation 068 6 8 The like, Serjt. A 6 8 6 8 The like, Mr. B 6 8 Subpoena ad test. .. .. .. ,.070 Copy and service on Mrs. M., at .. 10 Paid her 10 May 3. Attending, searching how cause stood . . 6 8 * See note, page 423. Digitized by Microsoft® Examples of Bills of Costs. 453 A* £ s. d. 1861. £ t. d. 6 8 May4. The like 6 8 10 Term fee 15 Trinity Term, 1861. 2 4 6 Refresher to Serjt. N. 2 4 6 6 8 Attending him 6 8 1 3 6 The like to Mr. A 13 6 6 8 Attending him 6 8 1 3 6 The like, Mr. B 13 6 6 8 Attending him 6 8 Attending, searching how cause stood .. 6 8 Michaelmas Term, 1861. 2 4 6 Refresher to Serjt. N. 2 4 6 6 8 Attending him 6 8 13 6 Thelike, Mr. A 13 6 6 8 Attendinghim 6 8 1 3 6 Thelike, Mr. B 13 6 6 8 Attendinghim 6 8 Attendances, searching how cause stood . . 6 8 6 8 Nov. 25. Having received letter from the registrar of the Court as to this cause, attending Mr. A., conferring as to summons as to fix a day for trial, when he thought the best course would be to have the jury in attendance on Monday and until the cause was heard as the judge had declined to take the cause out of its turn 6 8 13 6 Fee to him and clerk 13 6 6 8 Attending him 6 8 6 8 Attending the registrar of the Court in pur- suance of his letter, and arranging that we should give the sheriff notice to resummon the jury on Monday .. .. ..068 3 6 30. Writing to respondent as to position of cause in list 3 6 Subpoena ad test. . . . . . . ..070 Copy and service on Mrs. M. at Q. .. .. 10 2 Paid her ..200 6 8 Attending co-respondent, conferring on peti- tioner being about to charge adultery at Q., and taking instructions to see the ostler at Q., and Mr. and Mrs. H. thereon .. ..068 110 Attending at Woolwich, conferring with Mr. and Mrs. H., as to what transpired at Q., and taking minutes of their evidence . . 110 Paid expenses . . . . . . . . . . 4 4 Dec. 2. Attending at , conferring with Mr. D., Mr. C. and others, when all parties were sure that the co-respondent was not the person who accompanied the respondent to Q., October, 1860, and taking minutes of evidence, engaged two days . . ..440 1 17 2 Paid expenses 1 17 2 * See note, p. 423, Digitized by Microsoft® 1 10 6 8 1 6 6 S 1 3 6 6 8 1 3 6 e 8 1 1 1 8 8 1 1 1 1 1 1 ] 1 e 3 5 6 7 6 454 Appendix III. A* £ s. d. 1861 £ s. d. Dec. 2. Drawing further proofs • . . . ..100 Three brief copies .. .. .. 1 10 Attending counsel therewith .. .. ..068 Fee to Serjt. N. in consultation on fresh evi- dence .. .. .. .. .-160 Attending him and to appoint . . ..068 The like, Mr. A 13 6 Attending him and to appoint .. .. 6 8 The like, Mr. B 13 6 Attending him and to appoint .. ..068 Attending consultation .. .. ..110 6. Attending Court all day, cause adjourned till to-morrow .. .. .. .. ..220 Three subpoenas ad test. .. .. ..110 Copy and service on Mrs. C. at Q. . . . . 10 Paid her 110 Copy and service on Mr. D. at Q. . . . . 10 Paid him 100 Paid rail, fly hire and expenses . . . . 16 3 Copy and service on A. H. at Blackwall . . 15 Paid him 10 Notice to witnesses to attend on these sub- poenas .. .. .. .. ..076 7. Attending Court, petitioner declined to pro- ceed 110 10. Attending co-respondent on result of peti- tion, and as to course to be pursued, and arranging a conference with Mr. B. ..068 6 8 Dec. — .Attending conference at Mr. B.'s with co-re- spondent, conferring on course to be pur- sued, when Mr. B. recommended that ap- plication should be made to dismiss peti- tion, such application to be supported by affidavit 13 4 Paid Mr. B. conference fee and clerk .. 1 6 ' Attending him and to appoint . . ..068 Term fee 15 Hilary Term, 1862f. Refresher to Serjt. N. 2 4 6 Attending him 6 8 The like to Mr. A 13 6 Attending him 6 8 The like to Mr. B 13 6 Attending him 6 8 Jan. 9. The petitioner having written that it was his intention on the 20th to move to take the petition off the file, attending Mr. B. con- ferring with us as to abandoning an inten- tion to move on co-respondent's behalf for the same object, when he advised that the proper course would be for co-respondent * See note, page 423. + See note to page 455, infra. Digitized by Microsoft® Examples or Bills of Costs. 455 A« £ s. d. 1862. £ s. d. Jan. 9. to appear on petitioner's motion, first filing affidavits in support of his statement of the case .. .. ..068 Paid him conference fee and clerk . . ..160 Attending him and to appoint .. ..068 Instructions for affidavit of co-respondent ..068 Drawing same, fos. 12 .. .. 12 Engrossing .. .. .. . . ..040 Attending deponent reading over affidavit, and with him to be sworn . . . . ..068 Paid oath 16 Paid filing 2 6 Instructions for affidavit of Mr. B. . . . . 6 8 Drawing same, fos. 7 . . .. .. ..070 Engrossing .. .. .. .. ..024 Paid oath and attestation (marksman) . . 3 Journey to and from , procuring deposition of Mr. D. . . . . ..110 Paid expenses . . . . . . . . ..116 Paid deponent D 10 Paid filing affidavit 2 6 Instructions for affidavit of R. . . ..068 Drawing same, fos. 5.. .. .. ..050 Engrossing .. .. .. .. ..018 Attending deponent reading over affidavit, and with her to be sworn . . . . ..068 Paid oath 16 Paid filing affidavit 2 6 Instructions for affidavit of D. .. ..068 Drawing same, fos. 6.. .. .. ..060 Engrossing .. .. .. .. ..020 Attending deponent reading over affidavit, and to be sworn .. .. .. ..068 Paid oath 16 Paid filing affidavit 2 6 Copies of affidavits for petitioner's solicitor, fos. 30 10 Writing them therewith .. .. ..036 f Two brief copies affidavits for counsel, fos. 30 10 Instructions to Mr. H. to appear on motion 6 8 Fee to him and clerk . . . . . . ..460 Attending him . . •• •• •• ..068 2 9 6 Consultation fee to him and clerk . . ..296 6 8 Attending him and to appoint .. .. 6 8 6 8 Instructions to Mr. B. to appear on motion . . 6 8 3 5 6 Fee to him and clerk . . . . . . ..356 6 8 Attending him 6 8 2 4 6 Consultation fee to him and clerk . . . . 2 4 6 6 8 Attending him and to appoint .. .. 6 8 13 4 Attending consultation .. .. 13 4 6 Paid room and waiter . . . . . . ..060 * See note, page 423. f In this particular case all the fees from Hilary Term, 1862, to this point were disallowed between party and party ; they are inserted as sug- gestions, as in other cases they might be allowed. Digitized by Microsoft® 456 Appendix III. — Examples op Bills oe Costs. £ s. d. 1862. £ o. d. Jan. 16. Attending Court all day on motion, same not reached .. .. . . .. .. 13 4 17. Attending Court, motion heard and petition dismissed with costs .. .. . . 13 4 Attending bespeaking and afterwards for minute of the Court . . . . ..068 Paid 026 Copy and service on petitioner's solicitor .. 5 1 10 Drawing costs and copy .. .. ..300 2 6 Paid filing 026 10 Copy for petitioner's solicitor .. .. 10 Attending for appointment to tax . . . . 6 8 Copy and service on petitioner's solicitor . . 5 Attending taxing . . . . . . ..110 Paid 1 10 Attending to agree . . . . . . ..068 1 12 Paid Mrs. M. balance of her expenses .. 5 12 Term fee 15 » See note, p. 423. Digitized by Microsoft® ( 457 ) APPENDIX IV. FORMS which are to be folloived as nearly as the circum- stances of each case will allow. No. 1. — Petition. To the Judge Ordinary of Her Majesty's Court for Divorce, and Matrimonial Causes. The day of , 18 . The petition of 'A. B., of , showeth, — 1. That your petitioner was on the day of , 18 , lawfully married to C. B., then C. D. [spinster or widow], at the parish church of, Sfc. [Here state where the marriage took place.~\ '2. That after his said marriage your petitioner lived and cohabited with his said wife at and at , and that your peti- tioner and his said wife have had issue of their said marriage three children ; to wit : [Here state the names and ages of the children issue of the marriage.'] .3. That on the day of ,18 , and on other days between that day and , the said C. B., at in the county of , committed adultery with R. S. : 4. That in and during the months of January, February and March, 18 , the said C. B. frequently visited the said R. S. at , and on divers of such occasions committed adultery with the said R. S. Your petitioner therefore humbly prays, — That your Lordship will be pleased to decree : [Here set out the relief sought."] And that your petitioner may have such further and other relief in the premises as to your Lordship may seem meet. [Petitioner's signature.] No. 2. — Citation. In Her Majesty's Court for Divorce and Matrimonial Causes. Viotobia, by the grace of God of the united kingdom of Great Britain and Ireland queen, defender of the faith. To C. B., of in the county of Whereas A. B., of, Sfc., claiming to have been lawfully married to has filed petition against in our said court, praying B. X Digitized by Microsoft® 458 Appendix IV. for , wherein alleges that you have been guilty of adultery [or have been guilty of cruelty towards the said , or as the case may be] : Now this is to command you, that within eight days after service hereof on you, inclusive of the day of such service, you do appear in our said court then and there to make answer to the said petition, a copy whereof, sealed with the seal of our said court, is herewith served upon you. And take notice, that in default of your so doing, our said court will proceed to hear the said charge [or charges] proved in due course of law, and to pro- nounce sentence therein, your absence notwithstanding. And take further notice, that for the purpose aforesaid you are to attend in person, or by your proctor, solicitor or attorney, at the registry of our said court in Doctors' Commons, London, and there to enter an ap- pearance in a book provided for that purpose, without which you will not be allowed to address the court, either in person or by counsel, at any stage of the proceedings in the cause. Dated at London the day of , 186 , and in the year of our reign. (l. s.) (Signed) -X. Y., registrar. No. 3. — Prcecipe for Citation. In Her Majesty's Court for Divorce and Matrimonial Causes. Citation for A. B., of , against C. B., of , to appear in a suit for by reason of (Signed) A. B. in person, or C. D., proctor, solicitor or attorney for the said A. B. [Here insert the address required within three miles of the General Post Office.'] No. 4. — Certificate of Service. This citation was duly served by the undersigned G. H. on the within-named C. B., of , at , on the day of , 18 . (Signed) G. H. No. 5. — Affidavit of Service of Citation. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. against C. B. and E. F. I, C J)., of £cc. make oath and say, — That the citation, bearing date the day of , 18 , issued* under seal of this court against C. B. the respondent [or co- respondent] in this cause and now hereunto annexed, marked with the letter A, was duly served by me on the said C. B. at , in the county of, Sj-c, by showing to h the original under seal, and by leaving with h a true copy thereof, on the day of , Digitized by Microsoft® Forms. 459 186 . And I further make oath and say, that I did at the same time and place deliver to the said C. B. personally a certified copy, under seal of this court, of the petition filed in this cause. Sworn at, Sfc. on the day ) of . 186 . Before me, ) No. 6. — Entry of an Appearance. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B., petitioner, ^ The respondent, C. B., appears in person [or against S C. D., the proctor, solicitor, or attorney for C. B., respondent, r C. B., the respondent (or E. F. the co-re- and I spondent), appears for the said respondent E. F., co-respondent.'' or co-respondent]. [Here insert the address required within three miles of the General Post Office.} Entered this day of , 18 . No. 7. — Answer. In Her Majesty's Court for Divorce and Matrimonial Causes. The day of 18 . A. B. v. C. B. The respondent C. B., by C. D., her proctor, solicitor, or attorney [or in person], in answer to the petition filed in this cause, saith, — 1. That she denies that she committed adultery with It. S., as set forth in the said petition : 2. Respondent further saith, that on the day of , 18 , and on other days between that day and , the said A. B., at in the county of , committed adultery with K. L. [In like manner respondent is to state connivance, condo- nation, or other matters relied on as a ground for dismissing the ■petition.'] Wherefore this respondent humbly prays, — That your Lordship will be pleased to reject the prayer of the said petition, and decree, &c. No. 8. — Questions of Fact for the Jury. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. against C. B. and E. F. Questions for the Jury. 1. Whether C. B., the respondent, committed adultery with E. F., the co-respondent? 2. Whether A. B., the petitioner, has condoned the adultery com- mitted by C. B., the respondent (if any) ? x2 Digitized by Microsoft® 460 Appendix IV. 3. Whether A. B., the petitioner, has been guilty of cruelty to- wards C. B., the respondent? [Here set forth in the same form all the questions at issue between the parties.] 4. What amount of damages should be paid by E. F., the co- respondent, in respect of the adultery (if any) by him com- mitted? No. 9. — Act on Petition. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. against C. B. and E. F. On the day of , 186 . A. B., the petitioner [or C. D., the proctor, solicitor, or attorney 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., or C 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 CD. Answer. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. against C B. and E. F. On the day of , 186 . C. B., the respondent [or C. H., the proctor, solicitor, or attorney of C. B., the respondent] in answer to the allegations in the act on petition, bearing date the day of , 186 , 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 explanation 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 E. F. On the day of , 186 . A. B., the petitioner [or C D.. the proctor, solicitor, or attorney for A. B., the petitioner] in reply to the allegations of C. B. [or Digitized by Microsoft® Forms. 461 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 CD. No. 10. — Petition for Reversal of Decree. To the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes. The _ day of , 18 . The petition of A. B., of , showeth, — 1. That your petitioner was on the day of , 18 , law- fully married to C. B., then C. D. spinster [or widow] at the parish of, Sfc. [Here state where the marriage took place.] 2. That on the day of your lordship, by your final de- cree, pronounced in a cause then depending in this court, entitled C B. against A. 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 hnow of the proceedings; and further, that had he known qf them he might have offered a sufficient defence.] or That there was reasonable ground for your petitioner leaving his said wife, for that his said wife [Here state any legal grounds justifying the petitioner' s sepa- ration from his wife.] Your petitioner therefore humbly prays, — That your Lordship will be pleased to reverse the said decree. No. 11. — Appeal. I, A. B., the petitioner [or C. D. the proctor, solicitor, or attorney of A. B. the petitioner], in a suit lately depending in her majesty's court for divorce and matrimonial causes, entitled A. B. against C. D. and j3. F., 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 Judge Ordinary of the said court on the day of ,186 . Whereby amongst other things, the said Judge Ordi- nary did order and decree [here set forth the whole of the decree, or such part of it as may be appealed against] . (Signed) A. B. or CD. This instrument of appeal was lodged in the registry of Her Ma- jesty's Court for Divorce and Matrimonial Causes this day of 186 . To be signed by a clerk in the registry. Digitized by Microsoft® 462 Appendix IV. No. 12. — Affidavit in support of Motion for Decree absolute. v In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. against C. B. and E. F. I, C. D. of Sre., solicitor for A. B., the petitioner in this cause, make oath and say, that on the clay , 186 , I carefully . searched the books kept in the registry of this court for the purpose of entering appearances, from and including the day of , 186 , the day of the date of the decree nisi made in this cause, to the day of , 186 , and that during such period no appearance has been entered in the said books by her majesty's procurator-general, or by or on behalf of any other person or persons whomsoever. And I further make oath and say, that I have also carefully searched the books kept in the said registry for entering the minutes of proceedings had in this cause from and including the said day of ,186 , to the day of , 186 , and that no leave has been obtained by her majesty's procurator-general, or by any other person or persons ■whomsoever to intervene in this cause, and that no affidavit or affi- davits, instruments, or other documents whatsoever, have been filed in this cause by her majesty's procurator-general or any other per- sons whomsoever during such period, or at any period during the dependence of this cause, in opposition to the said decree nisi being made absolute. Sworn at, Src, on the day ) of , 186 . Before me, ] No. 13. — Petition for Alimony. To the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes. A. B. against C. B. and E. F. The day of 18 . The petition of C. B., the lawful wife of A. B., showeth, — 1. That the said A. B. does now carry on and has for many years past carried on the business of a at , and from such business he derives the net annual income of £ : 2. That the said A. B. is now or lately was possessed of or entitled to proprietary shares of the railway company, amounting in value to £ , and yielding a clear annual dividend of £ : 3. That the said A. B. 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 alimony] as to your Lordship shall seem meet. Digitized by Microsoft® Forms. 463 No. 14. — Election of a Guardian. By a petitioner. Whereas a suit is about to be instituted in her majesty's court for divorce and matrimonial causes on behalf of A. B. against C. B., the wife of the said A. B. and E. F. And whereas the said A. B. is now a minor of the age of years and upwards, but under the age of twenty-one years, and therefore by law incapable of acting in his own name: Now I, the said A. B., do hereby make choice and elect G. IT., my natural and lawful father and next of kin, to be my curator or guar- dian for the purpose of 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 C. D., of Src, my proctor [solicitor or attorney] to file or cause to be filed this my election for me in the registry of the said court. In witness whereof I have hereunto set my hand and seal this dav of in the year 186 . (Signed) A. B. (l. s.) Signed, sealed, and delivered by the within- named A. B., in the presence of [One attesting witness.'] By a respondent. Whereas a citation bearing date the day of , 186 , has issued under seal of her majesty's court for divorce and matrimo- nial causes, at the instance of A. B., claiming to have been lawfully married to C. B., citing the said C. B. to appear in the said court, and then and there to make answer to a certain petition of the said A. B. filed in the said court. And whereas the said C. B. is now a minor of the age of years and upwards, but under the age of twenty-one years, and therefore by law incapable of acting in her own name : Now I, the said C. B., do hereby make choice of and elect G. IT., 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 defending me in the said cause, and to abide for me in judgment until a final decree shall be given and pro- nounced therein, or until I shall attain the age of twenty-one years, and I hereby appoint, fyc. No. 15. — Subpoena ad testificandum. Victoria, by the grace of God of the united kingdom of Great Britain and Ireland, queen, defender of the faith, to [names of all witnesses included in the subpozna to be inserted], greeting : We com- mand you and every of you to be and appear in your proper persons before [insert the name of the judge], judge ordinary of our court for divorce and matrimonial causes, at Westminster, in our county of Middlesex, on the day of ,18 , by eleven of the clock in the forenoon of the same day, and so from day to day until the cause or proceeding is heard, to testify the truth, according to your Digitized by Microsoft® 464 Appendix IV. knowledge, in a pertain cause now in our said court before our said judge ordinary, depending between A. B., petitioner, and C. B„ respondent, and E. F., 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 [insert the name of the judge], at the court for divorce and matrimonial causes, the day of , 18 , in the year of our reign. (Signed) X. Y., Registrar. No. 16. — Prcecipe for Subpoena ad testificandum. In Her Majesty's Court for Divorce and Matrimonial Causes. Subpoena for [insert witnesses' names'], to testify between A. B., petitioner, C. B., respondent, and E. F., co-respondent, on the part of the petitioner [or respondent or co-respondent]. { A. B., ~t ( P.A., petitioner's [or respondent's or (Signed) < C. B., > or ■? co-respondent's] proctor, solicitor, (. E. F., } L or attorney. No. 17. — Subpoena duces tecum. Victoria, by the grace of God of the united kingdom of Great Britain and Ireland queen, defender of the faith, to [names of all parties included in the subpoena to be inserted], greeting : We com- mand you and every of you to be and appear in your proper persons before [insert the name of the judge], judge ordinary of our court for divorce and matrimonial causes at Westminster, in our county of Mid- dlesex, on the day of , 18 , by eleven of the clock in the forenoon of the same day, and so from day to day 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, Sec, 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 our said court before our said judge ordinary, depending between A. B., petitioner, and C. B., respondent, and E.F., co-respondent, on the part of the petitioner [or the respondent err 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 100Z. Witness [insert the name of the judge], at our court for divorce and matrimonial causes, the day of , 18 , in the year of our reign. (Signed) X. Y., Registrar. Digitized by Microsoft® Forms. 465 No. 18. — Precipe for Subpoena duces tecum. In Her Majesty's Court for Divorce and Matrimonial Causes. Subpoena for to testify and produce, &c, between A. B., petitioner, C. B., respondent, and E. P., co-respondent, on the part of the petitioner [or respondent or co-respondent]. cA.B.,-\ rP. A., petitioner's [or respondent's or (Signed) < C. B., > or < co-respondent's] proctor, solicitor, L E. F., j i. or attorney. No. 19. — Application for a Protection Order. To the Judge Ordinary of the Court for Divorce and Matrimonial Causes. The application of C. B., of , the lawful wife of A. B., showeth, — That on the day of she was lawfully married to A. B. at : That she lived and cohabited with the said A. B. for years at , and also at , and hath had children, issue of her said marriage, of whom are now living with the appli- cant, and wholly dependent upon her earnings: That on or about the said A. B., without any reasonable cause, deserted the applicant, and hath ever since remained sepa- rate and apart from her : That since the desertion of her said husband the applicant hath maintained herself by her own industry, and hath thereby and otherwise acquired certain property, [or hath become possessed of certain property], consisting of [here state generally the nature of the property]. Wherefore the said C. B. prays an order for the protection of her earnings and property acquired since the said day of , from the said A. B., and from all creditors and persons claiming under him. (Signed) C. B. No. 20. — Commission or Requisition for Examination of Witnesses. In Her Majesty's Court for Divorce and Matrimonial Causes. Victoria, by the grace of God of the united kingdom of Great Britain and Ireland queen, 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 our court for divorce and matri- monial causes between A. B., petitioner, and C. B.,- respondent, and E. F., co-respondent, wherein the said A. B. has filed his petition praying for a dissolution of his marriage with the said C. B. [or other- wise as in the prayer of the petition]. And whereas by an order made in the said cause on the day of 186 , on the application of the said A. B. it was ordered that a commission [or requisition] should issue under seal of our said court for the examination of [here insert x5 Digitized by Microsoft® 466 Appendix IV. name and address of one of the persons to be examined], and others as witnesses to be produced on the part of the said A. B., the peti- tioner, 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 adjourn- ment to such other time and place as to you shall 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 by you 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 empower you to take the exami- nation 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 re- duced into writing. And that for the purpose aforesaid you do assume to yourself some notary public or other lawful scribe as and for your ac- tuary 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 a9 aforesaid and subscribed by you, we do require [or request] you forthwith to transmit the said examination, closely sealed up, to the registry of our said court in Doctors' Commons in the city of London 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 commission [or requisition]. Dated at London the day of in the year of our Lord one thousand eight hundred and , and in the year of our reign. (Signed) A'. Y., Registrar. No. 21. — Bond for securing Wife's Costs. Kxow all men by these presents that we, A. B., of Sfc, O. H., of Sec, and K. L., of fyc, are held and firmly bound unto X. Y., one of the registrars of the principal registry of her majesty's court of pro- bate, in the penal sum of pounds 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, executors, or administrators firmly by these presents. Sealed with our seals. Dated the day of in the year of our Lord 186 . Whereas a certain cause is now depending in her majesty's court for divorce and matrimonial causes between A. B., petitioner of the one part, and C. B., respondent, and E. F., co-respondent, of the other part. And whereas A'. Y., one of the registrars of her majesty's court of probate, has by a report under his hand, made in the said cause on the day of , 186 , reported to the court that pounds was a sufficient sum to be paid into the registry of the court of probate to cover the costs of the said respondent [or petitioner] of and incidental to the hearing of the said cause [or otherwise as in Digitized by Microsoft® Forms. 467 the registrar's report'], or that a bond under the hand and seal of the said A. B., and of two sufficient sureties in the penal sum of pounds, conditioned for the payment of such costs of the said C. B. as shall be certified to be due and payable by the said A. B., not exceed- ing the said sum of pounds [or otherwise as in report], with hours notice of such sureties to the proctor [solicitor or at- torney] of the said C. B. was a sufficient security to be given for the costs aforesaid. Now the condition 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 of good and lawful money of Great Britain, or the lawful costs of the said C. B. the respondent [or petitioner] of and incidental to the hear- ing and trial of this cause [or otherwise as in report} to the extent of pounds, then this obligation is to be void and of none effect, otherwise to remain in full force and virtue. Sealed and delivered by the said A. B., -\ A. B. (l. s.) G. H., and K. L., in the presence > G. H. (l. s.) of 3 K. L. (h. s.) [One attesting witness.] \_The above Forms are authorized by the Rules; the fol- lowing are given as precedents :] — No. 22. — Entry of Appearance to Citation under Protest. In Her Majesty's Court for Divorce and Matrimonial Causes. . t} tV \ The respondent, C. B., appears in person [or A. Ml. petitioner, . c ^ thg proctor) so H c i tor) or attorney C i/ respondent I for a B > the respondent (or E. F. the j ' | co-respondent), appears for the said re- ,-,,-, j.i spondent or co-respondentl under protest to E. F, co-respondent. , ^ jurisdictioa of H the C0U J rt [Here insert address within three miles of General Post Office. ~\ Petitions. No. 23. — Dissolution of Marriage by a Wife — Petition alleging Incestuous Adultery. To the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes. The day of , a.d. The petition of Mary Jones, of , showeth, — 1. That your petitioner, then Mary Evans, spinster, was on the day of , 18 , lawfully married to John Jones, the respondent in this suit, at the parish church of , in the county of : 2. That after her said marriage your petitioner lived and cohabited with her said husband at and at , and that your Digitized by Microsoft® 468 Appendix IV. petitioner and her said husband have had issue of their said marriage six children; to wit, five sons and one daughter: 3. That the said John Jones, on the day of , in the year of our Lord one thousand eight hundred and sixty-four at , committed incestuous adultery with Anne Evans, the sister of your petitioner. And so your petitioner in fact says, that the respondent has been guilty of incestuous adultery. Your petitioner therefore humbly prays, that your lordship will be pleased to decree that the said marriage of your petitioner with the respondent be dissolved, and that the respondent be condemned in the costs of and incident to this petition, and that your petitioner have such other and further relief in the premises as to your lordship may seem meet. Mary Jones. No. 24.— Petition alleging Bigamy with Adultery — By a Wife. To the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes. The day of , a.d. 186 . The petition of Mary Jones showeth, — 1. That your petitioner, then Mary Evans, spinster, was on the day of , in the year of our Lord one thousand eight hundred and , lawfully married to John Jones, bachelor, at St. Mary Church, in the parish of : 2. That after the said marriage your petitioner lived and cohabited with her said husband at , in the county of , and at , in the county of , and that your petitioner and her said husband have had issue of their said marriage three children ; to wit, two sons and one daughter : 3. That afterwards, that is to say, on the day of , one thousand eight hundred and sixty, at , in the county of , the said John Jones did many one Eliza Styles: 4. That the said John Jones afterwards, that is to say, at , in the county of , on the day of , one thousand eight hundred and sixty, consummated the said pre- tended and illegal marriage with the said Eliza Styles, and cohabited and lived and committed adultery with her at , in the county of on the day of , and on the day of , and at on the day of , and on divers other occasions. And so your petitioner in fact says, the respondent has been guilty of bigamy and adultery. Your petitioner therefore humbly prays that, &c. [prayer as in Form No. 23.] Digitized by Microsoft® Forms. 469 No. 25. — Petition for Dissolution of Marriage by reason of Rape. [Commencement as before, Form 1, to the 3rd paragraph.] 3. That since the celebration of the said marriage, to wit, on the day of , A.D. 186 , the said John Jones was guilty of rape [sodomy or bestiality], committed in and upon one at in the county of Your petitioner therefore, &c. [prayer as in Form No. 23]. Mary Jones. Petitions for dissolution of marriage on the ground of adultery, coupled with cruelty or desertion, can be easily framed by inserting paragraphs charging cruelty or desertion or both (see forms for such paragraphs, Nos. 26 and 27) in the form of petition (see Form No. 1), charging adultery alone. Petitions in Judicial Separation. A petition for judicial separation by a wife on the ground of her husband's adultery may be framed by altering the prayer of Form No. 1, so as to resemble the prayer in the following form :— No. 26.- — Petition for Judicial Separation on the ground of Cruelty. To the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes. The day of , a.d. 186 . The petition of Mary Jones showeth, — 1. That your petitioner was on the day of , 1856, lawfully married to John Jones, then a bachelor [or widower] at : 2. That after her said marriage your petitioner lived and cohabited with her said husband at and at , and that your petitioner and her said husband have had issue of their said marriage four children, to wit, two sons and two daughters : 3. That on the day of , in the year of our Lord one thousand eight hundred and , and on other occasions, the said John Jones did at , make an assault upon aud beat the petitioner : 4. That shortly after their said marriage the said John Jones com- menced and has to the present time continued treating your petitioner with great unkindness and cruelty, that he frequently endeavoured to extort and did extort large sums of money from your petitioner by violence and threats of violence, that he frequently in violent and offensive language abused your petitioner, violently assaulted her, and on one occasion in the month of January, 1858, struck your petitioner on the fore- head, and that by reason of the said continued ill-treatment on the part of her said husband, your petitioner's health has been greatly impaired : Digitized by Microsoft® 470 Appendix IV. 5. That by reason of her husband's ill-treatment and threats, your petitioner has on divers occasions been compelled to leave her house and seek the protection of her friends, but has been induced to return to cohabitation with her said husband, by his solemn promise that he would treat her kindly for the future; that in consequence of her said husband violating his promises, and continuing to treat your petitioner with said unkindness and cruelty, your petitioner was compelled to seek the protec- tion of the law ; that accordingly, on the 10th day of April instant, your petitioner's said husband was by warrant brought before the , one of the magistrates sitting at the , and was by the said magistrate bound over to keep the peace towards your petitioner for three months; that your petitioner nevertheless has been too much alarmed to return, and has not returned to cohabit with her said husband. Your petitioner therefore humbly prays, — That your lordship will be pleased to decree that your petitioner may be judicially separated from the said John Jones, and that he pay the costs of and incident to this petition, and that your petitioner have such other and further relief in the pre- mises as to your lordship seems meet. Mary Jones. No. 27.- — Petition for Judicial Separation on the ground of Desertion. [Commencement as in Form, No. 1, up to the 3rd paragraph.^ 3. That the said John Jones, on or about the day of , a.d. 18 , deserted your petitioner without cause, and from thence hitherto without cause has left your petitioner destitute, and has kept and continued away for two years and upwards. Your petitioner therefore humbly prays, &c. [as in No. 26]. Mary Jones. Nullity. No. 28. — Petition for Nullity on account of undue Publica- tion of Banns. [Commencement as before, No. 1, the petitioner prosecuting the suit and signing the petition in her maiden name (a).'] 1. That the ceremony of marriage according to the rites of the United Church of England and Ireland, was on the 12th day of April, a.d. 1852, performed in the parish church of Man- chester, in the county of Lancaster, by the Rev. R. Remington, clerk, between your petitioner and one John Jones: 2. That, previous to the said ceremony of marriage, banns were published in the said church, but that there was no due publi- cation of banns according to the statute in such case made and («) Midgehj v. Wood, 30 L. J., P. M. & A. 57. Digitized by Microsoft® Fokms. 471 provided previously to the said marriage, inasmuch as the said John Jones was in the said banns described as William Jones, William not being one of the christian names of the said John Jones, nor a name by which he had ever been or was com- monly called or known, and the said John Jones was so de- scribed in the said banns by and with his own and your peti- tioner's direction and knowledge, and for the purpose of con- cealing the said marriage from the family of the said John Jones, and deceiving them in relation thereto : 3. That there was no licence obtained for the said marriage. Your petitioner therefore prays, — That your lordships will be pleased to declare that the said mar- riage in fact (but illegally) celebrated, as aforesaid, between your petitioner and the said John Jones, is null and void. And to decree that the said John Jones pay the costs of and incident to this suit, and that your petitioner have such other and further relief in the premises as to your lordships may seem meet. Mary Evans. No. 29. — Petition for Nullity alleging Impotence. [Commencement as before, No. 1, the petitioner prosecuting the suit and/ signing the petition in her maiden name.~\ 1. That the ceremony of marriage according to the rites of the Church of England and Ireland, was on the 12th of December, 1859, duly solemnized in the parish church of , between your petitioner and the respondent: 2. That your petitioner and the respondent have from thence until shortly before the commencement of this suit, and for a longer time than the space of three years, to wit, for the space of four years, lived and cohabited together : 3. That by reason of the malformation of the said respondent, your petitioner was prevented from consummating her said mar- riage : 4. That the respondent was at the time of the said marriage, and has from thence hitherto continued unable to consummate the said marriage by reason of the said malformation, and that such malformation is incurable by art or skill, and will so appear on inspection. Your petitioner therefore, &c. [as in the last precedent, leaving out the words, "but illegally"]. Mary Evans. No. 30. — Petition for Nullity on the ground of Lunacy of Petitioner at the time of Marriage. [Commencement as in Form No. 1, and the 1st paragraph after the manner of paragraph 1, in Form No. 28, according to the facts of the case; the petitioner prosecuting the suit and signing the petition in her maiden name.'] 2. That on the said 12th of April, a.d. 1852, at the time of the performance of the said ceremony, and prior thereto, your Digitized by Microsoft® 472 Appendix IV. petitioner was lunatic and incapable of contracting marriage, and that the said pretended marriage was brought about by the fraud, procurement and contrivance of the said John Jones. Your petitioner therefore, &c. [as in No. 28]. Mary Evans. No. 31. — Petition for Nullity on account of the Marriage being Bigamous. [Commencement as in Form, No. 1, and 1st paragraph after the manner of paragraph 1, in Form No. 28, according to the facts ; the petitioner prosecuting the suit and signing the petition in her maiden name~\ ; then proceed: — 2. That prior to the said pretended marriage, to wit, on the 14th day of September, 1851, the said John Jones was lawfully married to Ann James, at the parish church of , in the county of : 3. That on and after the said 12th day of April, 1852, when the said ceremony of marriage between your petitioner and the said John Jones was performed as aforesaid, the said Ann James (then Ann Jones) was alive, and the said marriage of her with the said John Jones was in force and effect, and in nowise annulled, dissolved or abrogated. Your petitioner therefore, &c. [as in No. 28]. Mary Evans. No. 32. — Petition for Nullity by reason of Affinity. [Commencement as in Form No. 1, and the 1st paragraph after the manner of paragraph 1, in Form No. 28, according to the facts; the petitioner prosecuting the suit and signing the petition in her maiden name.'] 2. That at the time of the performance of the said ceremony of marriage the said John Jones was a widower, having previously on the day of , a.d. 185 , married Maria Evans, who died previous to the performance of the said ceremony of marriage between your petitioner and the respondent: 3. That the said Maria Evans was the sister of your petitioner. Your petitioner therefore, &c. [as in Form No. 28]. Mary Evans. No. 33. — Restitution of Conjugal Rights—Petition by a Wife. [Commencement, and 1st and 2nd paragraphs as in Form No. 1.] 3. That the said John Jones did, on the day of , a.d. 18 , withdraw from cohabitation with your" petitioner, and has kept and continued away from her without any just cause whatsoever, and from thence hitherto hath refused and still re- fuses to render her conjugal rights. Digitized by Microsoft® Fokms. 473 Your petitioner therefore humbly prays, — That your lordship will decree a restitution of conjugal rights to your petitioner from the said John Jones, and that he pay the costs of and incident to this petition, and that your petitioner have such other and further relief as to your lordship seems meet. Mary Jones. No. 34. — Jactitation of Marriage — Petition. [Commencement as in No. 1]. 1. That Ann Evans of , in the county of , did in and about the month of , a.d. 18 , at and in divers other places wilfully and without the authority of your peti- tioner, boast and assert that she was the wife of your peti- tioner : 2. That the said Ann Evans is in nowise the wife of your petitioner, nor was she at the time of such boasting : 3. That the said Ann Evans refuses to desist from boasting and asserting that she is the wife of your petitioner. Your petitioner therefore humbly prays, — That your lordship will be pleased to order that the said Ann Evans do cease and desist from boasting and asserting that she is the wife of your petitioner ; and that she be enjoined per- petual silence in the premises, and that she do pay the costs of and incident to this petition, and that your petitioner have such other and further relief in the premises as to your lordship may seem meet. (Signed) John Jones. No. 35. — Petition for Dissolution and claiming Damages from Co-respondent. To the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes. The day of , 18 . The petition of John Jones, of , showeth, — 1. That your petitioner was on the day of , A.D. 18 , lawfully married to Mary Jones, then Mary Evans, widow, at in the parish of , in the county of : 2. That after his said marriage your petitioner lived and cohabited with his said wife at , and at , and that your petitioner and his said wife had issue of their said marriage three children ; to wit, one son and two daughters : 3. That on the day of , A D. 18 , and other days between that day and , the said Mary Jones, at , in the county of , committed adultery with William Smith : 4. And your petitioner claims damages from the said William Smith, on the ground of his having so committed adultery with the wife of your petitioner, 5,000/. Digitized by Microsoft® 474 Appendix IV. Your petitioner therefore humbly prays, — That your Lordship will be pleased to [decree that the said marriage of your petitioner with the said Mary Jones shall be dissolved, and to (a)] ascertain by the verdict of a jury the amount thereof to be recovered, and after the verdict has been given, to direct in what manner such damages shall be paid or applied. (Signed) John Jones. Answers. No. 36. — Wife's Answer to Petition for Dissolution by Husband on the ground of Adultery. [Any of the following paragraphs, in addition to the traverse, may be selected suitable to the respondent' s case.~] [Commencement and 1st paragraph as in No. 7, and if there is a counter-charge of adultery, add also 2nd paragraph of No. 7] 3. That the petitioner has condoned [or connived at] the adultery (if any) of the respondent alleged in the said petition: 4. That the petitioner has been guilty of cruelty in this, that on the day of , a.d. 18 , the petitioner struck and beat the respondent [it is better to set out the acts of cruelty relied upon, though evidence should not be pleaded, otherwise particulars of the acts may be obtained; Suggate v. Suggate, 28 L. J.,P.SfM.7]: 5. That the petitioner has been guilty of unreasonable delay in pre- senting [or prosecuting] his said petition, forasmuch as the said supposed acts of adultery are alleged to have taken place at , in the county of , in the month of , a.d. 18 , the petitioner did not present or file his petition until the day of , a.d. 18 , there being no reason for such delay : 6. That the petitioner on the day of , a.d. 18 , and before the said supposed acts of adultery complained of, de- serted [or wilfully separated himself from] the respondent without reasonable excuse, inasmuch [itis better, even in answer, to set out the facts relied on, as otherwise particulars may be ordered; see Pyne v. Pyne, 1 Sw. Sr Tr. 30] as the petitioner on the day of , a.d. 18 , at No. , in Street, in the petition mentioned, where the respondent was then cohabiting with him, went away from the said house and deserted [or wilfully separated himself from] the respondent for a long space of time, and until the filing of this his peti- tion : 7. That the petitioner has been guilty of such wilful neglect [or misconduct] as has conduced to the said alleged adultery (if any), inasmuch as [set out any facts relied on; the misconduct must be marital misconduct; Cunnington v. Cunnington, 28 L. J., P. Sr M. 101.] "Wherefore this respondent humbly prays that your lordship will be pleased to reject the prayer of the said petitioner, and decree, &c. (a) To be omitted if petition be limited to obtaining damages only. Digitized by Microsoft® Forms. 475 Answer — Judicial Separation. Answers to petitions for judicial separation may be easily framed from the answers to petitions for dissolution of marriage. They must, in like manner, whenever containing any matter beyond a simple denial of the facts stated in the petition, be accompanied by an affidavit verifying' such other matter and negativing connivance and collusion (see Rules 30 and 31, and affidavit to accompany answer, infra. No. 44), unless connivance or collusion be a part of the answer (see infra, p. 478). No. 37. — Answer to Petition for Nullity by reason of Impotence. [Commencement as before, No. 7.] 1. That the petitioner did consummate the said marriage so solem- nized 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. Wherefore this respondent, &c. [as in No. 7.] It would seem to be difficult to imagine any defences in confession and avoidance in suits for nullity; it may, however, sometimes be ad- visable to plead in that manner, although, strictly speaking, the answer may almost amount to an argumentative traverse of the petition. In the following instance it might be that the defence was included in the traverse of "the lawful marriage" alleged in the petition; but it would be safer to plead as follows, or at all events in addition to the traverse ; — No. 38. — Answer to Petition for Nullity on the ground of Petitioner's and Repondent's Marriage being Bigamous. [See Form, No. 31.] [Commencement as in Form No. 7.] 1. That the respondent denies that he was on the said 14th day of September, a.d. 1851, or at any other time, lawfully married to the said Ann James, as in the 2nd paragraph of the petition is alleged : 2. That before the said 14th day of September, a. d. 1851, when the said marriage between the respondent and said Ann James (if any) is alleged to have taken place, namely, on the day of , a.d. 1848, the said Ann James had been lawfully married to Josiah Smith, at the parish church of , in the county of ; and that on and after the said 14th day of September, A. D. 1851, when the said alleged marriage (if any) took place between the respondent and the said Ann Evans, the said Josiah Smitft was alive, and the said marriage between him and the said Ann James was in force and effect, and in nowise annulled, dissolved or abrogated. Wherefore this respondent [as in No. 7.] Digitized by Microsoft® 476 Appendix IV. No. 39. — Answer to Petition for Alimony pendente lite. \_See Petition for Alimony, Form, No. 13]. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. v. C. B. and E. F. The day of , a.d. 18 . The answer of the above-named A. B. to the petition for alimony pendente lite by the above-named C. B., filed herein : I, the said A. B., of in the county of , make oath and say : 1. In answer to the first paragraph of the said petition, I admit that I do carry on and have for years past carried on the business of a at as in the said first paragraph alleged, but I say that I derive from the said business the gross annual income of £ and no more, and that such gross annual income is subject to the following annual deduc- tions necessarily incurred in and about acquiring the said income, that is to say : £ for rent, £ for gas, matter which amounts in law to cruelty I on his part. Digitized by Microsoft® 478 Appendix IV. No. 42. — Replication. In Her Majesty's Court for Divorce and Matrimonial Causes. The day of , a.d. 18 . Jones v. Jones and Smith. The petitioner, by his attorney, as to the answer herein filed by the respondent, takes issue thereon. No. 43. — Affidavit to accompany Petition. In Her Majesty's Court for Divorce and Matrimonial Causes. In the matter of the petition of Mary Jones (a), for a dissolution of marriage. I, Mary Jones, of , in the county of , make oath and say, — That I was on the day of , lawfully married to John Jones, the respondent in this suit, at the parish church of , in the county of [Verify in this manner each paragraph of the petition, saying as to matters not within the petitioner's personal knowledge, " I am informed and verily believe," and con- clude thus:~\ I say that there is no collusion or connivance between me and the said John Jones in any way whatever. Sworn, &c. No. 44. — Affidavit to accompany Answer (b). In Her Majesty's Court for Divorce and Matrimonial Causes. Jones v. Jones and Smith. I, Mary Jones, of , in the county of , the respondent in this cause, make oath and say, — ■ That the petitioner has condoned the adultery (if any) alleged in the said petition. [Verify each paragraph of the answer in this manner, speaking of the offence alleged against the respondent as (" if any"), and as to matters not within the petitioner's personal knowledge, saying, " I am informed and verily believe."] I say there is no collusion or connivance between me and the said John Jones in any way whatever. [If collusion or connivance be alleged in the answer, add "otherwise than is hereinbefore set forth."] Mary Jones. Sworn, &c. (a) See petition No. 1. Steed v. Steed, I L. R., P. & D. 36i ; 36 L. J., P. & M. 50 ; see page 166. (b) See answer No. 36. Digitized by Microsoft® Forms. 479 No. 45. — Affidavit to ground Application for an Order to protect a Wife's Earnings. [See Form 19.] Ex parte C. B. the lawful wife of A. B. I, C. B. of , in the county of , make oath and say, — 1. That on the day of , I was lawfully married to A. B., at in the county of : 2. That I lived and cohabited with the said A. B. for years at , and also at , and have had children issue of my said marriage, of whom are now living with me and wholly dependent on my earnings: 3. That on or about the said A. B. without any reasonable cause deserted me, and hath ever since remained separate and apart from me : 4. That since the desertion of my said husband I have maintained myself by my own industry, and have thereby and otherwise acquired certain property [or have become possessed of certain property] consisting of [here state generally the nature of the properly}. C.B. Sworn, &c. No. 46. — Affidavit to found Motion for interim Order for the custody of Children. In Her Majesty Court for Divorce and Matrimonial Causes. Mary Jones v. John Jones. The day of , a.d. 18 . I, Mary Jones, of in the county of , the petitioner in this suit, make oath and say, — 1. That I was lawfully married to the said John Jones on the day of , a.d. 18 , at the parish church of , in the county of : 2. That there has been issue of the said marriage two children of the respective ages of three and two years, namely, Isabella born on the day of , a.d. 18 , and William born on the day of , a.d. 18 : 3. That from the day of , a.d. 18 , and before the commencement of this suit, and from thence hitherto the said John Jones has lived and cohabited and still lives and cohabits with one Emma Evans as his wife, and habitually commits adultery with her: 4. I say that the said John Jones is unfit on account of such his immoral character, to have the custody of the said children. Mary Jones. Sworn, &c. Digitized by Microsoft® 430 Appendix IV. No. 47. — Petition by Wife for the Custody of Children after a Decree of Dissolution of Marriage at Suit of Wife (a). To the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes. Mary Jones v. John Jones. The day of , a.d. 18 . The petition of the above-named Mary Jones, of , in the county of Showeth, — 1. That your petitioner was on the day of a.d. 18 , lawfully married to the said John Jones at the parish church of , in the county of : 2. That there is issue of the said marriage two children of the respective ages of three and two years, to wit, Isabella bora on the day of a.d. 18 , and William born on the day of " A.D. 18 : 3. That on the day of , a.d. 18 , your petitioner duly filed her petition for dissolution of the said marriage against the said John Jones on the ground of his adultery and cruelty towards your petitioner: 4. That the said John Jones did not appear in the said suit, and that the same was heard before your lordship without a jury on the day of , a.d. 18 : 5. That on such hearing the said alleged adultery and cruelty were fully proved, and your lordship thereupon duly decreed a disso- lution of the said marriage according to the prayer of your petitioner's said petition therein : 6. That the said John Jones, during the progress of the said suit, took away the said children from your petitioner, with whom they had before then been, and still keeps possession of the said children: 7. That the said John Jones is unfit on account of his immoral cha- racter to have the custody of the said children, he still living and cohabiting with Emma Evans, with whom at the hearing of the said petition for dissolution of marriage your petitioner alleged and proved, and your lordship found as a fact, that he committed adultery : 8. That your petitioner is willing and desirous to maintain and edu- cate the said children : Your petitioner therefore humbly prays that your lordship will be pleased to decree to your petitioner the custody of the said children, namely, Isabella Jones and William Jones, issue as aforesaid, and that your petitioner may have such other and further relief in the premises as to your lordship may seem meet. And your petitioner will ever pray, &c. Mary Jones, (a) See 22 & 23 Vict. c. 61, s. 4. Digitized by Microsoft® Foems. 481 Ko. 48. — Petition for an Order as to Application of Settled Property. To the Judge Ordinary of Her Majesty's Court for Divorce and Matrimonial Causes. A. B. v. C. B. The day of a.d. 18 . The petition of the above-named A. B., of in the county of humbly sheweth, — 1. That by the decree of the full court of January 27, 1860, the marriage was dissolved. 2. That by a post nuptial settlement bearing date June 3, 1850, a copy whereof was annexed to the petition, it was witnessed that certain trustees named should stand possessed of the sum of 15,000/. £3 per Cent. Reduced Bank Annuities and the sum of 2,450/. and 1,500/. £'S\ per Cent. Bank Annuities, &c, until the petitioner, the said A. B., should attain twenty-one, upon certain trusts, and after she should attain twenty-one upon trusts during the joiut lives of the said C. B. and the said A. B. his wife to pay two-thirds of the interest, dividends, &c, to the said A. B., or to such person as she should direct, for her separate use, and the remaining one-third of the interest, dividends, &c, to the said C. B. 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 and after the decease of such survivor should stand possessed of the said trust funds upon trust for all or any of the children of the said marriage according to the joint appointment of the said C. B. and his wife, or the appointment of the survivor, or in default of appointment for all the children of their 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 consent of their then parents or guardians, with an ultimate trust on failure of children for the said A. B. if she should survive her husband, but if not, then for the such person 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 her husband : 3. That there was one child of the marriage, namely, George B., born August 21, 1851: 4. That your petitioner has not cohabited with her husband since April, 1858 : 5. That your petitioner has attained the age of twenty-one : 6. That your petitioner and the trustees under the settlement, having filed a bill in chancery against the respondent, pray- ing amongst other things that the trusts of the said settle- ment might be carried into execution under the direction of that court, and that the trusts funds might be paid into court and secured from the benefit of your petitioner and her child, &c, It was ordered on the 23rd of July, 1859, that the several sums of 15,000/., 2,450/. and 1,500/. should be trans- ferred into the name of the accountant-general of the said court, in trust in the said cause, who was to declare the trusts B. T Digitized by Microsoft® 482 Appendix IV. thereof accordingly, subject to the further order of the said court, and that, after selling part of the said 15,000?. to pay certain costs, two-thirds of the residue of the interest and divi- dends of the said three sums should be paid to your petitioner for her separate use, the remaining one-third to be paid to C. B. until further orders: 7. That in obedience to the order a portion of the said sum of 15,0OOZ. and the other two sums had been transferred into the name of the accountant-general to the court of chancery to the credit of the said cause : 8. That all the said trust funds mentioned to the settlement were the sole property of your petitioner : 9. That the respondent has never given to or settled upon your petitioner any property. Prayer, "That your lordship will permit your petitioner to prove the existence of the said settlement, and the truth of the alle- gations contained in this petition, and will make such order or orders with reference to the application of the whole or a por- tion of the property settled thereby for the benefit of your petitioner and the said C. B. as to your lordships shall seem fit." No. 49. — Affidavit of Next Friend on Petition of Infants by such Next Friend. In Her Majesty's Court for Divorce and Matrimonial Causes. Between B. C. petitioner, and W. H. C. respondent. I, George C, of in the county of baronet, make oath and say as follows : that is to say, 1. On or about the day of 1S6 , this honorable court made a decree nisi that the marriage of the said B. C. be dissolved : 2. There are now living issue of the said marriage F. C, born on the day of and A. C, born on the day of : 3. By a petition to this honorable court filed by the said B. C. on or about the day of , the said alleged that the said children were then in the custody of the said W.H. C, and that the said W. H. C is by reason of his immoral con- duct unfit to have the care and custody of the said children, and she prayed this court to decree to her, the said B. C, the custody of the said children : 4. I am the eldest and only brother of the said W. H. C, and I am tenant for life of certain considerable estates in the counties of W. and S., which in default of my male issue are settled upon and will with the title of baronet descend upon the said A. C. I am godfather of the said A . C and Georgiana the wife of Sir /. H., of , in the county of , baronet, is my sister, and aunt to the said infants, and godmother to the said F. C. : 5. The said W. H. C. is deservedly fond of his said children, and has always been a kind and indulgent father to them, and they Digitized by Microsoft® Forms. 483 would be greatly pained by a separation from their father, ■whom they regard with corresponding affection, which affection the said JB. C. would (if the said children were handed over to her care) effectually weaken or destroy : 6. The said B. C. has never been an attentive mother, and has shown the utmost indifference to the interests of the children both before and during the proceedings on the petition for divorce, she is not from the irregularity and undisciplined state of her own habits of thought and conduct a proper person to have the control of young children, she is of exceedingly ex- travagant habits, and is at this present time much embarrassed with debts, and she is not therefore, as I verily believe, a fit or proper person to be entrusted by this court with monies for the maintenance and education of the said children : 7. The said B. C. at the time when she left ber husband's house embraced the Roman Catholic faith, and I and the said Lady H., as responsible for the religious education of the said A. C. and F. C, and I as interested in him as a possible successor to the honors and estate of my family, consider that we are bound and entitled to use our utmost efforts to preserve them from liability to perversion to the Church of Rome from the pro- testant faith of their ancestors, in which they were baptized and have been brought up hitherto : 8. We are willing to undertake the responsibility of their mainte- nance and education with such allowance from the means of the said W. H. C. as the court shall think proper to allow, and subject to such regulations for the access of the parents and other provisions as this honorable court shall direct. Sworn at -\ in Ae county^of Middlesex, I Qtgfge c _ Before me, J A London commissioner to administer oaths in chancery. No. 50. — Petition. — Infants by their Next Friend intervening. In Her Majesty's Court for Divorce and Matrimonial Causes. The day of Between B. C. and W. H. C. The humble petition of A. C. and -F. C, the infant children of the said W. H. C. and B. C, by Sir G. C, baronet, of G. Hall, in the county of S., their Next Friend, Sheweth : 1. That your petitioners are the children mentioned in the petition filrd by the said B. C. for the custody of children, and are respectively of the ages therein mentioned, viz., your petitioner F. of the age of nine years, and your petitioner A. of the age of eight years : / i2 Digitized by Microsoft® 484 Appendix IV. 2. That your petitioners pray that this honorable court should au- thorize such a scheme for the custody, maintenance and edu- cation of your petitioners as is set forth in the order of court hereunder written : 3. That the said Sir G. C. and Lady H. are willing on their parts respectively to undertake the duties and responsibilities cast upon them by the said order, provided that they are allowed to act free from any other control than that of this honorable court, and independently of any other persons associated or interfering with them in carrying out the said scheme for the benefit of your petitioners under the authority of this honor- able court. Your petitioners therefore pray that this honorable court will be pleased to order, That the custody of your petitioners shall until further order be confided to the said Sir G. C. and Lady H. : That an allowance of 200Z. per annum shall be made to the said Sir G. C. and Lady H. by the said W. H. C. for the maintenance and educatiou of your petitioners, to be paid quarterly, such allowance to commence from the day of the date of this order : That the said Sir G. C. and Lady H. shall superintend the care and education of your petitioners, and place them under the care of a proper person, to be selected by the said Sir G. C. and Lady H., residing within easy reach of the said Sir G. C.'s house at aforesaid : That the said Sir G. C. shall, upon the payment to him of the said 200Z. per annum, undertake all pecuniary responsibilities and outlay in and about the mainte- nance and education of your petitioners: That notice shall be given to the said W. H. C. and B. C. of the place where your petitioners shall from time to time be living, and that access shall be per- mitted both to the said W. H. C. and B. C. at all such reasonable times and subject to such regulations as the said Sir G. C. and Lady H. shall ne- cessary, and that (except as aforesaid) the said W. H. C. and B. C. shall be restricted from inter- meddling with the custody and education of your petitioners, except as after mentioned : That leave shall be reserved to the said W. H. C. and B. C, Sir G. C. and Lady H., and to your peti- tioners, by their next friend, to apply by petition to this honorable court in case any or either of them- are dissatisfied at the manner in which this order is carried out, or in case any or either of them shall desire to put an end to it. Digitized by Microsoft® FoKits. 485 No. 51. — Affidavit of Service and Non-appearance (a). In Her Majesty's Court for Divorce and Matrimonial Causes. B. v. B. $ D. I, 1. Make oath and say, that the citation bearing date the day of , 18 , issued under seal of this court against C. B., the respondent [or co-respondent] in this cause, and now here- unto annexed, marked with the letter A, was duly served by me on the said C. B. at , in the county of , by showing to him the original under seal, and by leaving with him a true copy thereof on the day of 18 . And I further make oath and say that I did at the same time and place deliver to the said C. B. personally a certified copy under seal of this court of the petition filed in this cause : 2. That I did on the day of , 18 , search the book kept in the registry of this court for entering appearances, by or on behalf of parties cited, to ascertain whether or not any ap- pearance had been entered by or on behalf of the said the in this cause, and that I find no appearance has been entered by him, or on his behalf. Sworn at on the day"\ of , one thousand eight I hundred and . | Before me, / No. 52. — Affidavit of Justification. In Her Majesty's Court for Divorce and Matrimonial Causes. I, , 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 for payment of the costs of the said , which have been incurred or are being incurred in this suit: 3. That I am possessed of property of the value of pounds over and above what will pay all my debts: 4. That such property consists of Sworn at in the county] of this of one thousand < hundred and sixty-four. Before me, A commissioner to administer oaths in chancery in England. (a) It is usual to file this affidavit annexed to the citation, or on its return to the registry ; in which case, the next form only requires the 2nd paragraph. Digitized by Microsoft® y C'UIISlbLt iounty'j day I eight j or. ' 486 Appendix IV. No. 53. — Minute on Deposit of Bond of Security for Costs of Petitioner [or Respondent] of and incident to the hearing of this Cause. In Her Majesty's Court of Probate. The day of , 186 . Messrs. , of , in the county of , the solicitors for the petitioner [or respondent], referring to the order of the judge ordinary of this court made in this cause, and bearing date the day of , 186 , whereby it was ordered that the petitioner [or respondent] do pay into the registry of her majesty's court of probate 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 this cause, or give such security for the said expenses as the said registrar might deem suffi- cient, brought into and filed in the registry of 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 reported 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 , 186 . No. 54. — Minute on Petitioner's [or Respondents] Solicitors paying into Court the Sum of £ to cover the Costs and Expenses of the Respondent [or Petitioner] of and incidental to the Hearing and Trial of this Cause. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. v. C. D. On Tuesday, the day of , 186 , before the undersigned registrar of the principal registry of her majesty's court of probate. Messrs. [insert name and address], the solicitors for the petitioner [or respondent] in this cause, paid into the registry of the said court the sum of pounds, the same being the amount reported by [name of registrar], esquire, one of the registrars of the principal registry of her majesty's court of probate, sufficient to cover the costs and expenses of the respondent [or petitioner] in this cause of and incidental to the hearing and trial thereof, the said report bearing date the day of , 186 . Registrar. Digitized by Microsoft® Fokms. 487 No. 55. — Registrar's Minute on cancelling Bond given by the Petitioner as Security for Respondent 's Costs. In Her Majesty Court for Divorce and Matrimonial Causes. A. B. v. C. D. On the day of , 18 , before the undersigned registrar of her majesty's court of probate. Referring to the order of the judge ordinary of this court, mtide in this cause on summons and by consent, and bearing date the day of , 18 , whereby it was 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 her majesty's court of probate, 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. Registrar. No. 56.— Form of Notice to be filed in the Registry on making Application for Payment of Money out of Court. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. v. C. D. Notice of [insert name], of [residence'], in the county of Middle- sex, solicitor for the petitioner [or respondent, as the case may be], on payment out of the registry of her majesty's court of probate to him of the sum of £ , heretofore paid into the registry of the said court by the respondent [or petitioner, as the case may be], to cover the coses and expenses of the petitioner [or respondent, as the case may be] of and incidental to the hearing of this cause. On which day, , the solicitor for the respondent [or petitioner, as the case may be], paid into the registry of the said court the said sum of £ The minute entered into the court books on receiving the said sum is as follows: — tHere insert the minute,] )n which day, the solicitor for the petitioner [or respondent, as the case may be] filed the bill of costs incurred on behalf of the petitioner [or respondent, as the case may be]. The registrar's certificate of the taxation of the said bill of costs bears this date. The order for payment out of the registry of the said sum of £ to the said , the petitioner's [or respondent's, as the case may be] solicitor, is dated the day of , 186 , and is as follows: — [Sere insert the order.] Digitized by Microsoft® 488 Appendix IV. No. 57. — Form of Receipt on Payment of Money out of Court. In Her Majesty Court for Divorce and Matrimonial Causes. A. B. v. C. D. Received the , 186 , of the registrars of the principal registry of her majesty's court of probate, the sum of , the same being the amount paid in the registry of her majesty's court of probate by the petitioner [or respondent], to cover the costs and expenses of the respondent [or petitioner] of and incidental to the hearing of this cause, and directed to be paid out to me, [petitioner's or respondent's agent,] in payment of — taxed costs by order of the her court made on summons dated £ [Stamp.] Agent for the No. 58.— Registrar's Minute on Payment of Money into Court. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. v. C. B. On the day of , 186 , before the undersigned registrar of the principal registry of her majesty's court of probate. Mr. [insert name and address], of , in the county of , the solicitor for the petitioner [or respondent], paid into the registry of the said court the sum of £ , the same being the amount reported by [insert name of registrar], one of the registrars of her majesty's court of probate, sufficient to cover the costs and expenses of the respondent [or petitioner] of and incidental to the hearing of this cause, the said report bearing date the day of , 186 . Registrar. No. 59. — Appointment of Inspectors and Order for Inspec- i tion. In Her Majesty's Court for Divorce and Matrimonial Causes. B. [falsely called K.'j v. K. The judge ordinary, having read the statement filed on behalf of the petitioner, and heard counsel thereon, in default of appearance of the respondent to the citation served on him and on the application of counsel for the petitioner, and on his nomination, appointed L. M. of C. street in the county of Middlesex, doctor of medicine, and N. O. of H. street in the same county, doctor of medicine, inspectors, to ex- amine the parts and organs of generation oi K., the respondent in this cause and to report in writing whether he is capable of performing the act of generation, and if incapable of so doing, whether such his im- potency can or cannot be relieved or removed by art or skill, and also to examine the parts and organs of generation of B., otherwise K., the Digitized by Microsoft® Forms. 489 petitioner in this cause, and to report in writing whether she is or is not a virgin, and hath or hath not any impediment on her part to prevent the consummation of marriage. And the judge ordinary ordered that the said reports be delivered by the said inspectors or one of them under their hands to one of the registrars of the principal registry of her majesty's court of probate, and the judge ordinary further ordered, that the said K., the respondent, and the said B., otherwise K., the petitioner, and the said L. M. and N. O., the inspectors appointed as aforesaid, do attend before one of the registrars of the said court, at such time and place as he may appoint, in order that the said petitioner and respondent may then and there be respectively identified as the parties in this cause, and the said inspectors sworn faithfully and according to the best of their skill and ability to inspect and examine the parts and organs of generation of the said petitioner and respondent, and report as aforesaid. No. 60. — Oath administered to the Medical Inspectors ap pointed to examine Petitioner and Respondent. In Her Majesty's Court for Divorce and Matrimonial Causes. B. [falsely called K.~\ v. K. F. S. and A. F. You are produced as inspectors in a cause depend- ing in her majesty's court for divorce and matrimonial causes, entitled , to examine the parts and organs of generation of in thie cause, and also of in this cause. You respectively swear that you will faithfully and to the best of your skill inspect the parts and organs of generation of each of them the said and , and make a just and true report in writing to the judge ordinary of this court whether the said is capable of performing the act of generation, and if incapable, whether such his incapacity can be cured by art or skill ; and also, whether the said is or is not a virgin, and whether she hath or hath not any impediment on her part to prevent the consummation of mar- riage, and that one of you will deliver such report under your hands and seals, closely sealed up, to one of the registrars of her majesty's court of probate. Sworn at the principal registry of her majesty's court of probate, this day of , 186 . Before me, Registrar. t a Digitized by Microsoft® 490 Appendix IV. No. 61. — Minute on Medical Inspectors of Petitioner and Respondent being Sworn, and, on Petitioner and Re- spondent appearing for Identification. In Her Majesty's Court for Divorce and Matrimonial Causes. B. [falsely called K.] v. K. Before the undersigned registrar of her majesty's conrt of probate. On the day of , 18 . Personally appeared , of , surgeon, and , of , doctor of medicine, who were respectively appointed by order of the judge ordinary of this court, dated the day of , 18 , as inspectors to examine the parts and organs of generation of the said K., and also of the said B. (otherwise K. ), and to report in writing whether the said K., the respondent, is or is not capable of performing the act of generation, and if incapable, whether such his incapacity can be relieved or removed by art or skill; anrl also to examine the parts and organs of generation of B. (otherwise K.), and to report in writing whether she is or is not a virgin, and whether she hath or hath not any impediment on her part to prevent the consummation of marriage, and who were respectively duly sworn according to the tenor of the oath filed in the registry of this court in this cause. Then appeared personally the said K., the respondent, who in the presence of the said inspectors and of the said registrar and of the pe- titioner, acknowledged himself to be the respondent or party proceeded against in this cause. Then appeared personally also the said B. (otherwise K.), the peti- tioner, who in the presence of the said registrar and of the respondent acknowledged herself to be the petitioner or party proceeding in this cause. Registrar. No. 62. — Minute on bringing in Report of Medical Inspectors. In Her Majesty's Court for Divorce and Matrimonial Causes. B. [falsely called K.] v. K. On the day of , 186 , before the undersigned registrar of the principal re- gistry of her majesty's court of probate. On which day personally appeared , one of the inspectors appointed by order of this court, dated the day of , 186 , to examine the parts and organs of generation of Adah B., falsely called £., the petitioner in this cause, and delivered to the undersigned registrar of her majesty's court of probate a sealed packet, which he alleged to contain the report of himself and of (the other in- spector appointed by the said order), of their inspection of the parts and organs of generation of the said Adah B., falsely called K. t the petitioner. Registrar. Digitized by Microsoft® Forms. 491 No. 63. — Minute of opening Report of Medical Inspectors of Petitioner and Respondent. In Her Majesty's Court for Divorce and Matrimonial Causes. A. v. K., falsely called A. On the day of , 186 , before the undersigned registrar of her majesty's court of pro- bate. On which day the undersigned registrar of the principal registry of her majesty's court of probate opened a sealed packet addressed to the principal registrar of her majesty's court of probate, which was trans- mitted to the registry of the said court by , and delivered at the said registry on the day of , 186 , and the same on being opened was found to contain a report under the hands of , the medical inspectors appointed by order of this court, made in this cause on the day of , 186 , to examine the parts and organs of generation of the said B., falsely called K., and whereupon the said registrar ordered the said report to be filed. Registrar. No. 64. — Order on Summons on change of Attorney — (Husband). In Her Majesty's Court for Divorce and Matrimonial Causes. Upon hearing R. of , solicitor, and S. the solicitor of the pe- titioner in this cause (and by consent), I do order that the said R. be appointed solicitor for the petitioner in this cause in the place and stead of the said S., on payment of his costs, and that the said costs be taxed by one of the registrars of her majesty's court of probate, and that the said S. do file his bill of costs for taxation within a week from the ser- vice of this order. Dated the day of 186 . No. 65. — Order on Summons on change of Attorney — ( Wife). In Her Majesty's Court for Divorce and Matrimonial Causes. Upon hearing R. of , solicitor, and S. the solicitor of the re- spondent in this cause (and by consent), I do order that the said R. be appointed solicitor for the respondent in this cause in the place and stead of the said S. on payment of his costs, and that the said costs be taxed by one of the registrars of her majesty's court of probate, and that the said S. do file his bill of costs for taxation within a week from the service of this order. And I do further order that at the taxation of the said costs the registrar shall certify what portion thereof is pay- able by the petitioner, and that the said S. do forthwith proceed to obtain and enforce an order for payment of the costs which are pay- able by the petitioner, and on payment of the same to the said S., that Digitized by Microsoft® 492 Appendix IV. the amount so paid shall be considered part of the costs certified to be payable to the said S. by the respondent. Dated the day of 186 . No. 66. — Affidavit for Motion for Commission to examine Witnesses. In Her Majesty's Court for Divorce and Matrimonial Causes. Between Petitioner, and Respondent. I, of , in the county of , make oath and say, that: — 1. I am the attorney for the petitioner in this suit, and have the management hereof which is preferred against the respondent for [state nature of suit]. 2. On the day of , A.D. 18 , the petitioner filed his petition in this suit alleging against the respondent that [state grounds of petition]. 3. On the day of , A.D. 18 , 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 witness for the petitioner as I am advised and verily believe, and I am advised and verily believe that the petitioner cannot safely proceed to trial hereof without his evidence. 6. That the said W. W. is dangerously ill and not expected to re- cover \or whatever may be 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. No. 67. — Notice to admit Documents. A. B. v. C. B, In Her Majesty's Court for Divorce and Matrimonial Causes. Take notice, that the — — — in this cause proposes to adduce in respondent evidence the several documents hereunder specified, and that the same may be inspected by the — H_ at on , between petitioner the hours of and , and the r sp , n is hereby re- petitioner quired, 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 Digitized by Microsoft® Foems. 493 that such documents as are stated to have been served, sent or de- livered were so served, sent or delivered respectively, saving all just exceptions to the admissibility of all such documents as evidence in the cause. To * — ^' \ or to "®" J ^'' P roctor J solicitor, or at- ^ < A. B. > torney for S f Si d"! \ A. B.\or G.H., proctor, solicitor, or attorney ) [Here describe the documents.] No. 68. — Affidavit to obtain Inspection on behalf of Re- spondent. , In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. v. C. B. I, E. F., of , attorney for the above-named respondent, make oath and say, as follows : 1. This is a suit for dissolution of marriage brought by the above- named petitioner on the ground of 2. The respondent has appeared and filed pleas alleging [here state the affirmative pleas], and denying [here state the traversers], on which pleas issue was duly joined on the day of , A.D. 18 . 3. On the day of , A. D. IS , a certain deed of sepa- ration [state the nature of the document to he inspected, as clearly as possible], was entered into between the above-named petitioner and respondent, and which said deed has remained since such the date of its execution, in the custody and control of the said petitioner. 4. That I am advised and believe, that it is necessary that I should inspect the said deed, and be prepared to prove as part of the case of the said respondent, at the hearing, the tenor and effect and contents thereof. Sworn, &c. No. 69. — Notice to Produce. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. v. C. B. Take notice, that you are hereby required to produce to the court at the hearing [or trial if before a jury] a certain letter, dated the day of , a. d. 18 , and written by the above-named .E — — ! to you the above-named — £- ' and &c. [here spe- respondent petitioner, cify the other documents in a similar manner which you desire the oppo- site party to produce at the hearing or trial], and all other documents, letters, books, papers and writings whatsoever containing any entry, Digitized by Microsoft® 494 Appendix IV. memorandum, minute, or other matter in any wise relating to the matters in question in this suit. Dated the day of , a.d. 18 . Yours, &c. To the above-named —~±-. - and petitioner, to Mr. Y. Z,, his attorney. X. r, P etitioner ' 3 attorney, respondent's No. 70.— Notice of Motion. In Her Majesty's Court for Divorce and Matrimonial Causes. Jones v. Jones and Evans. Take notice, that on the day of , a.d. 186 , the peti- tioner in this cause will move the court to [here state subject matter of the motion]. (Signed) Solicitor to the petitioner. To Messrs. Attornies for the respondent. No. 71. — Grounds of Application for a Rule Nisi for a new Trial. In Her Majesty's Court for Divorce and Matrimonial Causes. 1. That the verdict of the jury upon the issue charging the peti- tioner with adultery was against evidence: 2. That the verdict of the jury upon the issue charging the peti- tioner with desertion was against evidence: 3. That the judge ordinary misdirected the jury, first, in holding that the question of desertion or wilful separation as a discre- tionary bar to divorce was a question for the consideration of the jury; and secondly, in holding that the jury could find that petitioner was guilty of desertion, although it was proved that he had made the respondent a sufficient allowance during the period of such alleged desertion. Counsel will therefore move for rule nisi for new trial, &o. Digitized by Microsoft® Foems. 495 No. 72. — Case on Motion for Directions. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. v. C. B. and E. F. Case on behalf of A. B., the petitioner, herein to move the court for directions as to the mode of trial. This is a suit for a dissolution of marriage on the ground of adul- tery, brought by A. B., the petitioner, against his wife, C. B., the respondent, and E. F. the co-respondent. On the day of , a. d. 18 , the petition of A. B. was filed and citations against the respondent and co-respondent, extracted. The citations were duly served on the last-mentioned day, and on the day of , appearances were entered by the respondent and co-respondent. On the day of , a.d. 18 , the respondent filed her an- swer to the petition, and issue has been joined thereon. The co-respondent has filed no answer. Notice of this motion has been given to the solicitors of the respon- dents. Copies of the following documents are left herewith : 1. Petition. 2. Answer of respondent. 3. Joinder of issue thereon. 4. Notice served on the solicitors to the respondents at Westminster, on the day of , a.d. 18 . Counsel on behalf of petitioner, will move the court that the cause be heard before the court itself without a jury [or as the case may be~\. No. 73. — Case for Motion to be excused from making a Co-respondent. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. v. C. B. Case on behalf of A. B., the petitioner, to move the court that.he be excused from making the alleged adulterer a co-respondent to the petition. This is a suit for dissolution of marriage brought by A. B., against C. B., his wife, on the ground of her adultery with L. M. The said L. M. has died since the commission of the several alleged acts of adultery. Copies of the following documents are left herewith. 1. Petition. 2. Certified copy of entry in the register of deaths for the district within which L. M. died. 3. Affidavit of E. F. At Westminster, on the day of , a.d. 18 . Counsel on behalf of petitioner will move the court, that he be ex- cused from making the alleged adulterer a co-respondent to the peti- tion for the special grounds herein appearing. Digitized by Microsoft® 496 Appendix IV. No. 74.— Case for Motion for Attachment for Non-payment of Alimony. In Her Majesty's Court for Divorce and Matrimonial Causes. A. B. v. C. B. Case on behalf of Mrs. B., the petitioner, to move for a writ of attachment against C. B., the respondent. This is a suit for dissolution of marriage on the ground of the adultery coupled with cruelty of the said C. B. towards the said A.B. On the day of a.d. 18 , the petition herein was duly filed and citation extracted and served. On the day of , a.d. 18 , an appearance was entered thereto by the respondent but no answer has been filed. On the day of , a.d. 18 , the petitioner filed her petition for alimony. On the day of , a.d. 18 , the judge ordinary ordered the respondent to pay the sum of £ monthly to the petitioner as and for alimony pendente lite. On the day of a.d. 18 , the respondent was personally served with the said order, by shewing him the original office copy, and by serving on him a copy thereof. No portion of the said alimony has since been paid either to the petitioner or her attornies. Notice of this motion has been given to the respondent's solicitors. Copies of the following papers in the cause are left herewith. 1. Petition for alimony. 2. Order thereon. 3. Affidavit of E. F., of personal service thereof on the respondent. 4. Affidavit of petitioner of non-payment. 5. Affidavit of petitioner's attorney to the same effect. 6. Notice of motion. At Westminster on the day of , a.d. 18 . Counsel on behalf of the petitioner will move the court to decree a writ of attachment against the respondent for non-payment of the said alimony. No. 75. — Case on Notice of Motion to dismiss Petition. In Her Majesty's Court for Divorce and Matrimonial Causes. Evans v. Evans. Case. This is a motion on behalf of the respondent that the petition filed against him in this suit on the day of in the year of our Lord may stand dismissed. The petition alleged cruelty on the part of the respondent, and prayed for a judicial separation. The respondent pleaded that he had not been guilty of cruelty, and also condonation, and that the peti- tioner had been guilty of adultery on several occasions therein set forth. The cause was heard before the judge ordinary and a special jury on the day of , and a verdict was then given that the Digitized by Microsoft® Forms. 497 jury did not find that the respondent had been guilty of cruelty, and did not find that the petitioner had committed adultery. The plea of condonation was proved, and would have been decided in favour of the respondent, had not the jury by their verdict negatived the allegations of cruelty. The petitioner did not then move that the petition should be dis- missed. The respondent having, on the day of , a.d. 186 , filed a petition against the petitioner in this suit, and one Richard Powell, for a divorce a vinculo matrimonii, on the ground of his wife's adultery with the said Richard Powell, the petitioner in this suit (being the respondent in that suit), denied such adultery, and the said Jtichard Powell, as co-respondent, did not appear. The said last-mentioned suit was heard before the judge ordinary and a special jury, on the day of , when the jury found a verdict that the petitioner in this suit had been guilty ot the adultery charged. A decree nisi for a divorce a vinculo was accordingly pronounced. Notice of this motion was served on the petitioner's solicitor on the day of , and as it is presumed she may possibly not appear on the motion, an affidavit of the service of the notice of motion will be filed. Cbpies of the following documents are left herewith : [Here set out the documents filed.~\ At Westminster, on the day of , a.d. 18 . Counsel on behalf of respondent will move that the first-named petition be dismissed. No. 76. — Notice of Appeal. In Her Majesty's Court for Divorce and Matrimonial Causes. John Jones (petitioner) v. Mary Jones (respondent), and William Smith (co-respondent). Take notice, that on the day of , a.d. 186 , or as soon after as may be, an appeal will be presented on behalf of the pe- titioner [or respondent, or co-respondent], to the house of lords against the decree [or order] which was pronounced in this cause on the. day of , a.d. 186 . Dated this day of , 186 . K.Y. Solicitor for the petitioner, [or respondent, or co-respondent.] To Mr. Solicitor for the respondent [or petitioner, or co-respondent]. No. 77. — Certificate on the Appeal. K. Y., of Lincoln's Inn Fields, solicitor for the within-named appel- lant John Jones, hereby certifies that on the day of , a.d. 186 , he served Digitized by Microsoft® 498 Appendix IV. No 78. — Petition of Appeal. To the Right Honorable the Lords Spiritual and Temporal in Par- liament assembled : The humble petition of John Jones, of Z., in the county of * esquire, Sheweth, That your petitioner, on or about the day of A.D. 186 , duly filed his petition in her majesty's court for divorce and matri- monial causes, in which he showed that [here set out the petition], and in and by the said petition your petitioner prayed the said court [here set out prayer of petition] : That to this petition the respondent and the co-respondent, having both been duly served with process, appeared and put in their answers respectively ; and the respondent in her said answer said [here set out respondent's answer], and the co-respondent in his said answer said [here set out co-respondent's answer] : That your petitioner took issue on the said answers respectively, and a hearing was appointed ; and divers witnesses having been examined, and evidence put in, the said court did, on or about the day of , a.d. 186 , pronounce their decree dismissing your peti- tioner's said petition with costs : That your petitioner is advised, and humbly conceives, that the said decree is erroneous and contrary to equity and justice, and, being aggrieved thereby, your petitioner appeals from the same to your lord- ships, humbly praying that your lordships will be pleased to reverse or vary the said decree, and that your petitioner may have such other and further relief in the premises as to the house in your lordships' great wisdom may seem meet : And that an order may be issued requiring the said Mary Jones [the respondent], and the said William Smith [the co-respondent], to put in their respective answers to this your petitioner's appeal, and that service of such order on the soli- citors of the said Mary Jones and William Smith, in the said cause respectively, may be deemed good service. And your petitioner will ever pray, &c. No. 79. — Certificate of Counsel. We are of opinion that there is reasonable cause for an appeal in the present case against the decree above complained of. (Signed) L. M., Barrister-at-law. N. O., Barrister-at-law. No. 80. — Order to Answer. Upon reading the appeal of John Jones, complaining of a decree of her majesty's court for divorce and matrimonial causes, it is or- dered by the lords, &c, that Mary Jones, the respondent, and William Smith, the co-respondent, may each have a copy of the said appeal, and may put in their answers thereto respectively, in writing, on or before the day of next, and service of this order upon their respective solicitors in the court below shall be deemed good service. (Signed) 6. H., Cler. Parliamentor. Digitized by Microsoft® Forms. 499 No. 81. — Answer of Respondent to Appeal. In the House of Lords. The answer of Mary Jones, the respondent to the petition and appeal of John Jones, appellant. The respondent, not confessing or acknowledging all or any of the matters or things in the petition and appeal mentioned to be true, as the same are therein set forth, and reserving to herself all benefit and advantage of exceptions to the errors, defects, and imperfections in the said appeal contained, for answer thereunto saith: She admits that the court for divorce and matrimonial causes did make such decree as in the said petition and appeal is mentioned and complained of; but as to the date and contents of such decree the respondent doth, for greater certainty, refer to the said decree when the same shall be produced ; but the respondent is advised that the said decree is agreeable to equity and justice, and she humbly submits that the same ought to be affirmed, and the said petition and appeal be dismissed with costs. The folloioing Forms may be obtained in print at most Laio Stationers. Citation. Praecipe for Citation. Affidavit for Service of Citation. Affidavit of Search for Appearance. Summons. Order. Subpoena ad testificandum et duces tecum. Subpoena ad testificandum. Praecipe for Subpoena duces tecum. Praecipe for Subpoena ad test. Setting down Cause. Notice of having set down Cause. Notice to produce Documents. Notice to admit Documents. Affidavit to make Rule Nisi absolute. Digitized by Microsoft® Digitized by Microsoft® INDEX. ABANDONMENT of domicil, 9. ABATEMENT, death of petitioner after hearing or argument, 202. after decree nisi, 203. after decree absolute, ib. before hearing, but after sum paid into court, ib. death of respondent, ib. of co-respondent, ib. ABROAD, meaning of the word in Divorce Court, 3. marriage celebrated, 233. respondent, service of citation on, when dispensed with (see Citation), 172. witnesses resident, no ground for trial by affidavit, 215. witness going (see Interrogatories), 223. costs of examining witnesses, 224. affidavits sworn (see Affidavits), 218. husband employed, no order for alimony on, 134. ABSENCE in search of employment, reasonable excuse, 101. ABSOLUTE decree (see Decree). defences to dissolution of marriage, 73. traverse (see Denial of the facts alleged), 74. connivance (see Connivance), 75. condonation (see Condonation), 81. collusion (see Collusion), 91. ABUSE, mere, not cruelty, 29. ACCESS of husband to wife, 239. non-access with childbirth, proof of adultery, ib. of parent to child may be ordered by Court during a suit, 126. on final decree should be asked for by petition, ib. after final decree, 127. ACCESSION to adultery (see Connivance), 75. ACQUIESCENCE (see Unreasonable Delay), 98. passive, how far it amounts to condonation, 75, 87. ACTS of cruelty, how many required, 31. when committed under influence of disease, 32. ACTUAL residence requisite to found a domicil, 9. ADDED name in publication of banns, 53. ADDING co-respondent, 169. ADDITION of deponent to be inserted in affidavit, 219. ADDRESS of petitioner (Rule 9), 170. of respondent (Rule 21), 183. Digitized by Microsoft® 502 INDEX. ADJOURNMENT of hearing, 248. when made by full Court, Judge Ordinary alone cannot make amend- ment, ib. allowed, to add a counter-charge, 80. ADMISSIONS as evidence of identity, 230. by parties, 24-0. when receivable, ib. confirmed by collateral circumstances, ib. in a letter, ib. to third parties, ib. Court may act on, alone, ib. evidence against the party making, only, 241. of documents (see Documents), 220. ADMIT, notice to, 220. (See forms, Appendix IV., No. 67.-492.) ADULTERER may be a witness to prove adultery if not a party to the suit (see Co-respondent), 241. ADULTERESS may be made co-respondent (20 & 21 Vict. c. 85, =. 28, Appendix I.), 367. ADULTERY, evidence of parties as to, 211. parties to suit instituted in consequence of, not admissible, 212. except as to cruelty or desertion on wife's petition for dissolution, ib. aliler if suit instituted for restitution of conjugal rights, ib. evidence of, 238. all the circumstances looked at, ib. evidence of subsequent acts admitted, ib. of prior acts refused, 160. testis Iwpinarum, 239. ocular proof not expected, ib. birth of a bastard child, 167, 239. venereal disease, ib. wife going to a brothel, 240. visiting a single man, ib. admissions of (see Admissions), ib. as a ground of petition of dissolution at suit of husband, 22. at suit of wife, incestuous, 23. with bigamy, ib. with cruelty, 25. with desertion, ib. as a ground for judicial separation, 26. not answered by cruelty, 105. as an answer to, a suit for dissolution, 94. how affected by condonation, ib. prior or subsequent to that complained of, 95. one offence fatal to petitioner, 96. when petitioner believes spouse to be dead, ib. when petitioner coerced into prostitution by respondent, to. compensaiio criminis, ib. amount of evidence requisite for a counter-charge, 97. distinction between dissolution and other suits, ib. unknown, an excuse for dispensing with co-respondent, 167. a suit for judicial separation (see Judicial Separation), 103. distinctions in respect of it as an answer between dissolution and judicial separation, ib. qucere if a defence to a petition charging cruelty, 105. Digitized by Microsoft® INDEX. 503 ADULTERY— continued. as an answer to a suit for restitution of conjugal rights, 112. no answer to nullity, 108. as an answer to nullity struck out, 195. no answer to jactitation, 117. traverse of, with plea of condonation, how pleaded, 185. will revive cruelty, 36, 90. AFFIDAVITS (Rules 138 to 146), 408. generally, 214, 217. when trial permitted by, 214. when to be filed, 216. counter affidavits, ib. affidavits in reply, ib. deponent to be cross-examined, 217. order for trial by, ib. before whom sworn, ib. in Isle of Man and Channel Islands, 218. in foreign parts out of the Queen's dominions, ib. Scotland, Ireland, or colony, ib. how framed, 219. heading, ib. stamp, ib. interlineation or erasure, ib. trial by, 20 & 21 Vict. u . 85, ». 46 (see Trial by Affidavit), 214, 371 (Appendix I.) marriage must be established by, before petition for alimony can be filed, 132, 133. in support of petition (Rule 2), 166. is strictly preliminary (see also Practice), ib. when mistake occurs in, 201. in support of answer (Rules 30, 31 ; see also Practice), 184. when connivance or collusion pleaded, 185. in support of replication or subsequent pleading, 187. of personal service of citation, 180. form of (see Forms). of search and non-appearance, 180. form of (see Forms). when to be filed, 181. on intervention by Queen's proctor, 253. or one of the public isee Rules 70 — 76), 251. for motion to dismiss petition, 261. on motion for attachment, 298. AFFINITY (5 & 6 Will. 4, c. 54, s. 1). degrees set out in Common Prayer Book, 23, 60. parties illegitimately connected, ib. marriages within such degrees, 61. not created by sexual intercourse without marriage, ib. AGE of parties in nullity material, 43. of witness ground for interrogatories, 223. great, of a witness, a ground for interrogatories, ib. AGGRAVATION in cruelty, 27. matters of, against co-respondent in damages, 121. AGREEMENT to live separate, how far connivance, 78. how far binding, 113. as an answer to judicial separation on ground of adultery, 106. as an answer to suit for restitution, ib. to pay alimony and costs enforced by attachment, 296. Digitized by Microsoft® 504 INDEX. AGREEMENT— continued. to put an end to a suit for nullity not void, 69. between petitioner and co-respondent as to damages set aside by Court, 122. ALIMONY, generally, 131. pendente lite, in dissolution (20 & 21 Vict. c. 85, s. 32), ib. in other cases (20 & 21 Vict. c. 85, s. 6), ib. time for applying for (Rule No. 81), 132. heard as motions, ib. from when payable, 133. wife considered innocent in, ib. after being convicted of adultery by Queen's proctor, ib. of felony, 134. nature of suit immaterial, ib. on whom order can be made, ib. uncertificated bankrupt, ib. husband employed abroad, ib. having no means, ib. or only contingent reversion, ib. voluntary allowance to, 135. all property considered, 136. where husband does not appear, ib. amount of, ib. what is considered, ib. rank of husband, ib. supporting children, ib. extravagance of wife, ib. nature of complaint, 137. rank of wife, ib. vexatious suits by, ib. her earnings, 138. her order of protection, ib. Ecclesiastical Courts how far guide in dissolution, 147. when not allowed, 139. what deductions allowed from income, ib. repairs, ib. instalment of a debt, ib. premiums on insurance, ib. payments to or for wife since return of citation (see Addenda). subsequent reduction, 140. husband's answer ambiguous, ib. his attendance, 141. when alimony pendente lite ceases, ib. Rule 93, 1866.. 142. to whom payable, ib. permanent, in dissolution of marriage, ib. a gross sum or annual sum, ib. monthly or weekly, 143. when to be applied for, ib. decree may be suspended to allow petition for alimony to be filed, ib. after decree of judicial separation, 144. amount of, guilty party now ascertained, ib. where husband delinquent, ib. where wife delinquent, 145. queere, can alimony be granted after decree of judicial separation against wife on the ground of her cruelty ? 146. in nullity, ib. Digitized by Microsoft® INDEX. : 505 ALIMONY— continued. permanent — continued, when to commence, 146. when appeal interposed, ib. when computed from, 147. deductions allowed, ib. payments since citation by husband (see Addenda at commence- ment. ) Ecclesiastical Courts formerly held to be no guide in dissolution, 147. now overruled, 148. powers of the Court, ib. arrears beyond one year not enforced, 148. exception, 149. * subsequent reduction of, ib. wife acquiring income, -ib. loss by speculations, ib. increased salary and expenditure, ib. husband obtaining decree of dissolution, ib. parties bound by the amount allowed in alimony pendente lite, 150. if wjfe desire to show increase, she must file a petition, ib. mode of reducing alimony, ib. answer to, 151. must be on oath, ib. taken strongly against husband, ib. husband's attendance, ib. not filing answer has no locus standi, 152. net income, ib. particularity required, ib. partnership concerns, ib. answer should give average of three years, ib. replication, ib. to whom alimony payable, 153. service of order, ib. payment of, how enforced (see Enforcement of Decrees and Orders), 153, 297. ALLEGIANCE, 2. what is, ib. children born abroad, ib. ambassador's children, ib. of foreigner married to Englishman, 3. ALTERATION of marriage settlement, 154. costs of, 289. AMBASSADOR'S house or chapel, marriage in, 234. children, 2. domicil of, 9. AMBIGUOUS answer in alimony, 140. AMENDMENT (Rule 34). of pleading, 197. obtained on motion, ib. or by withdrawal of petition and re-service, ib. need not be four days' notice, ib. noviter ad notitiam perventa, 198. facts subsequent to the citation, ib. when refused, ib. principle of amendments as at common law, 199. prayer added as to settlements, ib. B. Z Digitized by Microsoft® 506 INDEX. AMENDMENT— continued. claim for damages, 199. amended petition must be reserved, ib. re-service, ib. and 200. when original service by advertisement, 200. when mistake in name, ib. affidavit verifying petition, 201. amendment by striking out, ib. adding plea, 202. of decree nisi, ib. answer to amended pleading, ib. of citation, 183, 201. of appeal (see Appeal), 267. of record (see Rale 43), 197. AMOUNT of alimony (see Alimony). ANNUAL sum for alimony, 142. ANSWERS to alimony (see Alimony), 151. dissolution (see Dissolution), 73. judicial separation (see Judicial Separation), 103. nullity (see Nullity'), 108. restitution of conjugal rights (see Restitution of Conjugal Rights), 111. jactitation (see Jactitation), 117. ANTE-NUPTIAL incontinence, 22. no ground for petition, ib. a good replication to the defence of " wilful separation," ib. APPEAL statutes, 262; and see Appendix I., and the recent Act 31 & 32 Vict. c. 77, in the Addenda at the commencement generally, 262. time for, to full Court, 263. time for, to House of Lords, ib., 266. to the House of Lords, 261. effect of, only to suspend the sentence, ib. Court will not suspend proceedings during improper appeal, 2S5. when appeal lies to the House of Lords, ib. when to the full Court, 266, practice in House of Lords, ib. all parties must be cited, ib. notice of, ib. certificate, ib. must be signed by two counsel, ib. lodging appeal, ib. order on respondent to answer, ib. service of order, 267. appellant to enter into recognizances in eight days, ib. amendment of appeal, ib. counter appeal, ib. if respondent fail to answer, ib. peremptory order, ib. how obtained, ib. party not in contempt, ib. printed case, 268. to the full Court, ib. practice, ib. instrument and notice, 269. form of (see Form, No. 11). 461. appellant case in support, 269. Digitized by Microsoft® INDEX. 507 A PPE AL— continued. to the full Cnurt — continued. respondent's case against, 269. hearing, ib. what must be shown, ib. right to begin, 270. APPEARANCE under protest, 20. form of (No. 22), 467, Appendix IV. absolute, a waiver of objection to jurisdiction, 21. generally (see Practice), 181. directions for entry of, 183. when to be made, 181. when leave to be asked, ib. when granted, 183. by guardian, 182. effect of, without filing answer, ib. effect of non-appearance by respondent in suit for damages, 125. if no appearance entered, practice for petitioner, 180. petitioner must prove his case.^'i. how far evidence of identity, 230. form of affidavit of non-appearance, Appendix IV. (No. 51), 485. APPENDIX I.— Statutes: 4 Geo. 4, c. 76.. 305. 6 & 7 Will. 4, c. 85.. 315. 6 St 7 Will. 4, c. 86.. 331. 19 & 20 Vict. c. 119, Marriage and Registration Act, 347. 20 & 21 Vict. c. 85, Divorce Act, 362. 21 & 22 Vict. u. 108.. 376. 22 cSi 23 Vict. c. 61.. 381. 23 & 24 Vict. c. 14K.382. 25 & 26 Vict c. 81. .384. 27 & 28 Vict. c. 44.. 385. 29 Vict. c. 32 -.ib. 31 & 32 Vict. c. 77. . Addenda at the commencement. ' 17 & 18 Vict. c. 125, ss. 18— 49. .392. APPENDIX II.— Rules and Orders : consolidated orders in chancery orders, 29 and 30.. 41 2. APPENDIX III.— Fees and Costs: table of fees to be taken in Court, 417. additional table of fees, 418. fees to be taken by attornies for their own use, 419. fees to be taken by attornies for thp use of other persons, 421. examples of bills of costs, respondent's (wife) bill of costs, 423. further bill. 426. petitioner's bill of costs, 430. further items after decree nisi and for altering settlements, 438. another form of further expenses, 440. co-respondent's costs, 449. APPENDIX IV.— Forms (see Forms). ARGUMENTATIVE traverse of marriage, plea of nullity, 74. ARREARS of alimony, beyond one year, not enforced (see Alimony), 148. ASSIGNMENT of counsel and attorney to pauper, 204. ASSIZES, issues may be tried at, 190. ASSUMED name in publication of banns, 53. z2 Digitized by Microsoft® 508. INDEX. ATTACHMENT (see Enforcement of Orders). when not granted, 295. when granted, 296. writ of, 413 (Appendix II.) ATTENDANCE of petitioner (see Examination of Petitioner), 210. of husband at hearing of petition for alimony, 111. of witnesses, how enforced, 213. ATTORNIES may practise in Divorce Court, 20 & 21 Vict. t. 85, s. 15, 364. their certificates, 20 & 21 Vict. c. 85, s. 63. .374. wife's, his duty, 273. his lien, 285. AUSTERITY of temper not cruelty, 27. AVOIDING creditors (see Domicil), 16. AWARD when enforced between husband and wife, 115, 116. BANKRUPT cannot be ordered to pay alimony, 134. BANNS (see Nullity), 51. misdescription in name must be for fraud, ib. distinction between banns and licence, ib. false name, in absence of fraud, valid marriage, 52. false name by mistake, void marriage, ib. form of petition for undue celebration (see Forms). BAR to suit (see Answer). BARRISTERS (see Counsel), may practice in Divorce Court, 20 & 21 Vict. c. 85, s. 15.. 364. BASTARD child, conclusive proof of adultery, 239. adulterer unknown, excuse for making co-respondent, 167- BEGIN, right to, 244. BEHAVIOUR, coarse and brutal, not alone connivance, 75. BERWICK-UPON-TWEED a part of England in Divorce Court, 4. BESTIALITY, ground for dissolution (see Dissolution), 25. mere proof of conviction insufficient, ib. BIGAMY, with adultery, ground for dissolution, 23. definition of, by statute, ib. doubt as to, 24. adultery must be with the same person, ib. offence complete though second marriage void, ib. but quaere, ib. quaere, can it be condoned ? ib. conviction of, no estoppel in suit, 58. BILL OF EXCEPTIONS, 20 & 21 Vict. c. 85, ss. 9, 39.. 363, 370. BISHOP'S licence, 48. BOND against marrying again not required (Rule 126), 407. BRAIN FEVER, injuries inflicted by husband under, how far cruelty, 32. BRITISH subjects abroad, marriages of, 233. in India, 236. ambassador's chapel, 234. factory or lines, ib. possessions, as to swearing affidavit in (see Affidavit), 218. Digitized by Microsoft® INDEX. 509 CANON 101st (1603). .48. 53rd.. 59. CASE, special, 20 S; 21 Vict. c. 85, s. 39 . . 370 (see also Forms, Appendix IV. ) for motion generally, 206. for motion for directions, 188. CELEBRATION of marriage, 44. special licence, 48. ordinary's licence, ib. banns, 51. superintendent registrar's licence, 55. superintendent registrar's certificate, 56. before whom to be performed, 57. where to be performed, ib. must be where specified in notice and certificate, 58. hour for, ib. between whom, ib. CEREMONY (see Celebration). marriages without, in counties where none required, 233. CERTIFICATE, medical, in nullity, 66. of marriage before registrar (see Celebration), 56. of registry of marriage, as evidence, 230. of cause of appeal (see Appeal), 266. form of, counsel's, in appeal (Appendix IV., No. 79), 498. CHANGE of domicil, 9. CHANNEL ISLANDS, foreign countries in divorce jurisdiction, 4. who may administer oaths there, 218. CHAPEL, AMBASSADOR S, marriage in, 234. CHAPEL, marriage solemnized in, 57. CHILDREN, custody of, 125. interim order, ib. provision on final decree, ib. between decrees nisi and absolute, 126. must be asked for in prayer, ib. mere access pendente lite, ib. interveners, 127. after final decree, ib. access after decree, ib. jurisdiction of Court in, ib. petition for custody of, rules and orders do not apply to, ib. when petitioner is insane, 128. when husband immoral, ib. where parent has no control, Court has none, ib. nor power to order maintenance, ib. discretion of the Court, ib. both parties must be before the Court, 130. wife succeeding, generally entitled to custody, ib. should be asked for in prayer of petition, 131. provision for, 154. domicil of, 8. cruelty to, may be cruelty to mother, 33. CHILI, registers of, 235. CHOICE, domicil by, S. Digitized by Microsoft® 510 INDEX. CHOSES in action of wife, how Rffected by judicial separation, 155. (see 20 & 21 Vict. c. 85, s. 26), 367. how affected by reversal of judicial separation (20 & 21 Vict. e. 85, s. 23).. 366. CHRISTIAN marriage alone recognized here, 4. CHURCH, marriage solemnized in, 57. not requisite when marriage is by special licence, ib. CITATION, directions as to, 170. generally, ib. must correspond with petition, 171. to appear sufficient, ib. address, ib. misnomer, ib. cured by appearance, ib. time specified in, 172. personal service of, ib. service other than personal, ib. no power to dispense with, ib. application for, substituted, ib. some attempt must be made to serve personally, 173. respondent abroad, ib. attempt to discover essential, 174. when dispensed with, ib. " service on minors, 177. married women, 178. lunatics, ib. time for return of discretionary, 172. must be returned to registry, 178. not necessary for a protecting order, 158. CLAIM for damages (see Damages), 119, ISP. COHABITATION, triennial, when required in nullity, 64. want of, a defence in nullity, 111. how far condonation, 88, 86. evidence of identity, 230. COLLUSION, absolute defence in dissolution, 73. what is. 91. distinction between, and connivance, ib. petitioner must be a party to collusive agreement, 93. respondent aiding suit, it>. respondent pleading in maintenance of suit of nullity, 111. there must be some agreement between the parties, 93. when not pleaded, 94. affidavit (with petition) to negative, 166. form of (see Forms). affidavit in support of answer, when collusion pleaded, 185. must extend to plea of collusion, ib. form of (see Forms). unless proved, no costs to Queen's proctor in intervention, 255. affidavit as to collusion not required in restitution of conjugal rights, 166. as a defence in judicial separation, 106. COLONY, foreign countries in divorce jurisdiction, 4. before whom affidavits, &c, may be sworn in, 218. marriages celebrated in, 236. Digitized by Microsoft® INDEX. 511 COLONY— continued. evidence of law of, 233. register of, 235, 237. COMMISSION to examine witnesses (see Interrogatories), 222. marriage of persons found insane by, void, 62. COMPENSATIO CRIMINIS,96 COMPLAINT, recent evidence of cruelty, 242. COMPROMISE of suit enforced, 38, 116. of nullity, 69. CONCEALED name in publication of banns, 53. CONDONATION, absolute bar in dissolution, 81. what is, ib. question of fact not of law, ib. when pleaded by wife, 82. the husband's knowledge, ib. mere suspicion, 83. the kind of forgiveness necessary, 84;. offer to forgive, ib. need not be accepted, ib. acts without words, ib. mere residence not cohabitation, 85. must amount to reinstatement, ib. when pleaded by husband, 86. distinguished from wife's plea, ib. continuance of cohabitation, ib. spes recuperandi, 87. passive acquiescence, ib. suit for restitution, how far condonation, 88 in dissolution, must be of " the adultery complained of," ib. revival, 89. implied condition, ib. what will be a revivor, ib. slighter offence sufficient, ib. undue familiarities will revive adultery, ib. harsh treatment will revive former cruelty, ib. subsequent threats, ib. condonation, with express condition, 90. different offences, ib. cruelty will revive adultery, and vice versa, ib. desertion will not revive cruelty, ib. subsequent cruelty should be something of same kind as former, ib. revival alter cohabitation under a decree, ib. revival operates at any stage, 91. condonation when not pleaded, ib. affidavit as to, with traverse by respondent, ib. how it affects a counter-charge of adultery, 94. as defence in judicial separation, 106. replication of, in dissolution does bind the Court, 94. CONDUCT of petitioner, in questions of cruelty, 36. CONFESSIONS (see Admission), 210. CON FRONT ATION, Court cannot order a party to be confronted in a suit for dissolution, 214, 242. but may be made a condition in allowing party to appear, 214. semble, aliter in other suits, ib. CONJUGAL rights (see Restitution of). Digitized by Microsoft® 512 INDEX. CONNECTION, partial, in nullity, 67. CONNIVANCE, absolute bar in dissolution, 73. what is, 75. inattention, ib. acquiescence, ib. intention, ib. divorce in a foreign court, how far, 76. no active step necessary, ib. must be criminal, 77. indifference to wife's conduct, ib. extreme negligence, 78. withdrawal from suit, ib. agreement to live separate, ib. in dissolution must be of the " adultery complained of," 79. money paid without husband's knowledge, 80. defence injudicial separation, 106. defence to a petition for damages, 125. affidavit with petition negativing, 166. with answer, if connivance pleaded must extend to plea, 18-5. not required in restitution of conjugal rights (Rules 3, 31), 383, 395. CONSANGUINITY (see Nullity), 60. prohibited degrees are those in Common Prayer Book, 23, 60. extends to illegitimate relations, 61. CONSENT necessary to constitute marriage, 61. force and fraud, ib. imbecility and insanity, ib. party recovering sanity may institute suit, ib. of person whose consent is required for a licence, 50. item for a marriage before registrar, 56. there must be, to constitute connivance, 75. CONTEMPT (see Attachment), 294. CONTINGENT reversion, no ground for ordering alimony, 134. CONTRACTS by wife while separated, 20 & 21 Vict c. 85, s. 26.. 367. not prejudiced by reversal of decree of judicial separation, 20 & 21 Vict. c. 85, a. 23.. 366. CONVICTION no evidence of crime (see Bigamy, Rape. $c), 24, 43. how far an estoppel, 228. copy of register as evidence (see Evidence, Marriage), 231. CO-RESPONDENT (see Adulterer). adulterer must he made (20 & 21 Vict. c. 85, s. 28), 166. unless excused on special grounds, 167 when application for excuse should be made, ib. must be made, though adulterer be dead, ib. what are " special grounds," ib. adulterer unknown, ib. birth of a bastard, ib. previous recovery of damages, ib. no evidence against adulterer, 168. wife a prostitute, ib. if adulterer be subsequently discovered, ib. may be dismissed from suit, ib. when dismissed a competent witness, 213. every adulterer must be made a co-respondent, 169. claim for damages against (see Damages), 119. adding a co-respondent, 169. costs against (see Costs). Digitized by Microsoft® INDEX. 513 COSTS, power of Court to order adulterer to pay, 270. fees to be regulated, ib. bills to be subject to taxation, ib. power to enforce decrees of prior Courts as to, ib. Rules (151— 159). .410. see scale of fees and costs, Appendix III., 417. copies of bills of costs, 423. power of Ecclesiastical Courts, 272. suspension, ib. wife's costs against husband, 273. duty of wife's attorney as to, ib. de die in diem, 274. judge can order a sum to be paid into Court by husband or security given, ib. of interrogatories, 224. when commission applied for, 275. reason of rule, ib. nullity, ib. husband a lunatic, ib. insolvent, 276. wife unsuccessful, ib. when wife has a sparate income, ib. third parties, 277. costs against wife, ib. interlocutory motions, ib. wife's preliminary right is only against husband, ib. wife's right against husband when both are respondents, 278. costs against guardian, ib. petition by next of kin, ib. when husband dead, ib. when wife returns to cohabitation, 279. when wife found guilty of adultery, ib. wife's costs should be taxed before verdict, ib. when co-respondent condemned in costs, 280. registrar's report not made in time, ib. when wife successful, 281. principles of taxation, ib. wife improperly a witness, ib. unfounded defence, 282. suit instituted alio intuitu, ib. witnesses to a plea not in issue, 283. two counsel, ib. where London attorney employed, ib. unsuccessful motion by wife, ib. costs of wife after decree, 284. new trial, 262, 284. suing in forma pauperis, 284. appeal, costs of, ib., 372. of special jury, 285. payment of husband's costs by wife, ib. attorney's lien, ib. costs against co-respondent, ib. when co-respondent liable, ib. not if wife's conduct profligate, 286. misconduct of petitioner, ib. its effect on co-respondent's liability to costs, 287. when co-respondent entitled to costs, ib. when petition dismissed, 288. costs of attorney, 289. z 5 Digitized by Microsoft® 514 INDEX. COSTS— continued. alteration of marriage settlement, 289. what are " costs incurred in proving the adultery," ib. Queen*s proctor, 290. no costs, unless collusion proved, ib. no costs where he appears as one of the public, 291. taxation (see Rules 151, Sic, Appendix 11.), 291. how reviewed, ib. what will be allowed, ib. term refreshers, ib. unnecessary appearance on motion, ib. motion made, when application ought to have been by summons, 292. of appeal, 284, 292, 372. no appeal on costs alone, 372. examples of bills of costs, Appendix III. COUNSEL, costs of fee on advising, 291. only two on each side heard in the House of Lords, 268. certificate of, reasonable ground of appeal, 266. form of (see Form, No. 79;, 498. priority of, 246. if none appear at trial, ib. of co-respondent cannot cross-examine on what is not evidence against him, 247. cannot cross-examine petitioner if called by respondent, ib. when.he must address Court if he call no evidence, ib. COUNTER AFFIDAVITS (see Affidavits). COUNTER APPEAL, 267. COUNTER CHARGE against petitioner (see Defence in Dissolution). when petitioner should produce his evidence to rebut, 245. COURT FOR DIVORCE, jurisdiction of (see Jurisdiction), 1. principles of, 21. Judges of, 20 & 21 Vict. c. 85, s. 8, 9.. 363. 22 & 23 Vict. c. 61, s. 1. 381. Judge Ordinary, precedence of, 22 & 23 Vict. c. 61, s. 3. .382. sittings of, 20 & 21 Vict. c. 85, s. 12. .363. 23 & 24 Vict. c. 144, s. 4.. 383. CRIM. CON., actions of, abolished, 20 & 21 Vict.c. 85, s. 59.. 373. principles of, in claim against co-respondent, 120. distinction between crim. con. and claim, 124. CROSS-EXAMINATION of petitioner, 210— 212. by co-respondent at hearing, 247. CROSS SUITS, when necessary in dissolution (see Respondent), 186. evidence in, under a commission, 225. CRUELTY, as a ground of petition, coupled with adultery, 25. party may be a witness as to, 212. what is, 26. bodily injury, ib. reasonable apprehension of bodily injury, 27. injury to health, ib. mere rudeness not, ib. rank of parties, ib. aggravations, ib. wife's station considered, ib. her state of health, ib. Digitized by Microsoft® INDEX. 51s CRUELTY — continued. cohabitation must be unsafe, 27. moral iniquity not, 28. threats, ib. abuse, 29. mere insult, 30. may be without actual violence, ib. motive immaterial, 31. how many acts required, ib. under influence of disease, 32. definitions unsafe, ib. to children may be cruelty to mother, 33. debauchery, ib. false charges, ib. drunkenness, ib. venereal disease, 34. cutaneous disease, ib. spitting in face, ib. treating wife as a prostitute, 3.5. revival, ib. may be revived by adultery, 36. difference of sexes, ib< danger to respondent from her own conduct, ib. conduct of petitioner, ib. may be not entirely blameless, 37. compromise of suit, 38. as a defence to petition for dissolution, 99. when provoked by drunkenness, ib. must lead to the adultery complained of, ib. need not be so much as to found a petition, 100. party not admissible as a witness as to, 212. no defence to judicial separation on ground of adultery, 105. aliter on other grounds, 106. to restitution of conjugal rights, 113. no defence to nullity, 108. how far pleadable by co-respondent as to damages, 124. when considered in alimony pendente lite, 137. qucEre, can permanent alimony be granted to wife after decree of judi- cial separation on the ground of her cruelty 1 146. how to be charged in petition, 161. each paragraph need not contain complete act, 165. vagueness in charging not demurrable, 195. as a revivor of condoned adultery, 89, 90. as a revivor of condoned cruelty, 90. recent complaint evidence of, 242. CUSTODY of children (see Children), 125. intervention in, 257. DAMAGES against adulterer, 20 & 21 Vict. c. 85, s. 33. .368. may be joined to petition for dissolution, 119, 159. must be tried by a jury, 20 & 21 Vict. c. 85, s. 33.. 368. petition must be served on wife and co-respondent, 119. claim for, how tried, 120. what to be proved, ib. what to be considered by jury, 121. damages, ib, application of, by Court, ib. amount of, by jury, ib. Digitized by Microsoft® 516 INDEX. DAMAGES— continued. agreement between petitioner and co-respondent set aside by Court, 122. investment of, ib. speedy payment of, 123. lefence by co-respondent, 124. marriage void, ib. separation, ib. distinction between, and action for crim. con., ib. connivance, 125. co-respondent cannot give evidence, 212. aliter if adulterer not a party, 241. co-respondent may be dismissed from suit, 213. recovery of, excuse for making co-respondent, l(i7. DEAD witness (see Evidence, under 21 & 22 Vict. u. 108, s. 5), 226. DEATH of party (see Abatement), 202. DEBAUCHERY, how far cruelty, 33. DECLARATION to be given to superintendent registrar, 56. of intention to change domicil, 10. DECREE, nisi, in dissolution (see Intervention), 219. final as between the parties, 141. status of the parties between, and decree absolute, 252. is their intercourse illicit? 253. alimony during the interval (see Alimony), 141. absolute, when to be made, 25i3. now extended to six months, 29 Vict. c. 32.. 385 months are calendar months, 256. the search, ib. the affidavit, ib. effect of, 262. (See Form of Affidavit), Appendix IV. (No. 12), 462. injudicial separation (see Judicial Separation). in restitution (see Restitution). obedience to decree in, 298. in nullity (see Nullity). in jactitation (see Jactitation). if petition proved, perpetual silence decreed, 71. in alimony (see Alimony). how decrees enforced (see Enforcement of Decrees). DEDUCTIONS allowed in alimony, what, 139. repairs, ib. instalments of debt, ib. premiums on insurance, ib. payments to or for wife since citation (see Addenda at commencement). DEED of separation (see Agreement to live separate). not acted on, how far desertion, 40. no plea to suit for restitution, 113. in Ecclesiastical Courts, considered illegal, ib. in Courts of Equity, 1 14. but injunction granted at suit of father of wife, ib. at suit of trustees, ib. distinction between parol agreements and deeds, 115. sometimes collaterally introduced into plea, ib. award, ib. Digitized by Microsoft® INDEX. 517 DEFAULT, no judgment by, in Divorce Court, 180. save against co-respondent, 125. or in intervention by Queen's proctor, 254. DEFENCES (see their respective headings). unfounded costs of (see Costs), 282. DELAY, unreasonable, as a defence to dissolution, 97. effect of, 98. excuses for, ib. want of means, ib. husband's affliction, ib. malfeasance of agent, 99. misapprehension of the law, ib. abandonment of previous suit, ib. how far a defence in judicial separation, 107, 108. in nullity, 109. in setting down cause for trial (see Practice), 193. in filing record (see Practice), ib. in application for interrogatories, 225. DELICTI, LOCUS, effect of, on jurisdiction, 18. DELIRIUM TREMENS, injuries inflicted by husband under, how far cruelty, 32. DEMURRER (see Practice). vagueness no ground for, 164. DENIAL of the facts alleged, 74. need not be accompanied by affidavit, ib. argumentative, to dissolution by pleading husband's impotency, ib. (See also Hearing, Right to begin.) the only defence to the marital offences, coupled with adultery, 75. plea of connivance, condonation, or collusion pleaded with, 91. affidavit in such case accompanying answer, 185. how to be worded (see Form, No. 44), 478. DEPONENT may be produced on trial by affidavit, 217. his addition and residence must be inserted in his affidavit, 219. DESERTION, what is, 38. mere separation not, 39. may become so after, 40. deed of separation not acted on, ib. separation by husband's imprisonment, 41. petitioner's offer to return on conditions, ib. refusal of petitioner to return, respondent living in adultery, ib. respondent's offer to return, 42. as a ground of petition by wife, coupled with adultery, 25. party may be a witness as to, in dissolution, 212. for judicial separation, 38. for restitution of conjugal rights, 69. as a defence in dissolution, need not be for two years, 100. equivalent to being left destitute, ib. injudicial separation, 106. no defence if ground of petition is adultery, ib., 107. aliter in dissolution of marriage, ib. to a claim for damages, 124. as a ground for an order for protection to wife's earnings, 157. how much particularity required in stating, 158. Digitized by Microsoft® 518 INDEX. DESERTION -continued. excuses for, antenuptial incontinence discovered, 22. wife found submitting to indecent liberties, 101. (See Wilful Separation, Excuses for.) will not revive cruelty, 90. DIFFERENCE of sex in cruelty, 36. DISCHARGE of protection order, 158. DISCRETION of Court, in custody of children, 128. in costs, 274. DISCRETIONARY defences to dissolution, what are, 73. adultery of petitioner (see Adultery), 94. unreasonable delay, 97. cruelty, 99. desertion, 100. wilful separation, ib. neglect or misconduct, 102. (See also Dissolution). DISEASE, acts committed under influence of, how far cruelty, 32. communication of, how far cruelty, 34. DISMISSAL of petition, 248. will not be allowed after verdict for respondent till one month has elapsed, 261. unless parties concur, ib. motion for, should be supported by affidavit, ib. its effect on costs ( see Costs), 288. form of case for motion for (see Form, No. 75), 496. DISMISSING co-respondent from suit (see Practice), 168. DISPENSING with co-respondent, 167. DISSENTERS, marriages of, 55. by superintendent registrar's licence, ib. what form the parties think fit to adopt, ib. notice and declaration to be give'n to superintendent registrar, ib. penalties of false, ib. by registrar's certificate, 56. notice to superintendent registrar and his certificate, 55. must be in presence of registrar or superintendent registrar, 57. DISSOLUTION of marriage, general principles, 21, 179. ground of, for husband's petition, 22. for wife's, 1. incestuous adultery, 23. what is incest, ib. 2. bigamy with adultery, ib. what is bigamy, ib. distinction between indictable offence and the marital offence, 24. must be with same person, ib. bigamy complete, though second marriage void, ib. must be proved, ib. 3. rape, 24. having connection with a child, ib. qucere as to the proof of rape, ib. mere conviction insufficient, ib. 4. sodomy, 25. Digitized by Microsoft® INDEX. 519 DISSOLUTION— continued. for wife's— continued. 5. bestiality, 25. 6. adultery with cruelty, ib. 7. decisions of Ecclesiastical Courts as to cruelty, ib. adultery with desertion, ib. defences iu dissolution, 73. absolute, ib. discretionary, ib. absolute defences, traverse, 74. no affidavit required, ib. petitioner ran-t prove his petition, ib. only defence as to the offences coupled with adultery, ib. connivance (see Connivance). condonation (see Condonation). collusion (see Collusion). discretionary defences, adultery of petitioner (see Adultery, Answer), 94. unreasonable delay (see Delay), 97. cruelty ( see Answer, Cruelly ), 99. desertion (see Answer, Desertion), 100. wilful separation (see Separation), ib. neglect or misconduct (see Misconduct), 102. costs in, of wile (see Costs). of co-respondent (see Costs). decree nisi (see Decree Nisi, Intervention). now made absolute (see Decree Nisi). DIVORCE a linculo (see Dissolution). a mensa et thoro (see Judicial Separation). foreign, when amounting to acquiescence in adultery, 76. DIVORCED parties, when they can re-marry (20 & 21 Vict. c. 85, s. 57), 373, and (31 St 32 Vict. c. 77, s. 4), in Addenda at commencement. if married before time limited, marriage void, 59. clergy may refuse to marry, 48. DOCUMENTS, admission of, 220. notice to admit, ib. form of ( see Form, No. 67), 492. when to be served, 220. notice to produce, ib. form of (see Form, No. 69), 493. when and where to be served, 220. when necessary, 221. inspection of, ib. DOM1CIL, what is, 5. means " home," ib. by origin, 6. given by birth and connections, ib. presumption of law, ib. by law, 7. of wife, ib. wife living apart, 8. after judicial separation, ib. of child, ib. by choice, ib. prima facie evidence, 9. change of, ib. declarations, 10. Digitized by Microsoft® 520 INDEX. DOMICIL— continual. actual residence, 10. actual abandonment, 11. mere change, ib. intention exuere palriam, ib. intention to return, 12. of origin unknown, 13. lodgings, 12, 14. house on lease, ib. no fixed abode, 15. residence on account of health, ib. residence on account of business, 16. exile, ib. insanity, ib. avoiding creditors, ib. naval service, ib. military service, 17. East India Company's officers, ib. office abroad, 18. DRUNKENNESS, how far an excuse for cruelty, 99. how far cruelty, 29, 33. DULNESS of apprehension, mere, not connivance, 75. DURESS, renders marriage procured by, void, 61. EARNINGS of deserted wife, how protected, 157. considered, in allotting alimony, 138. EAST INDIA COMPANY'S officers, their domicil, 17. ECCLESIASTICAL Courts extinct, 20 & 21 Vict. u. 85, a . 2.-362. transferred to Divorce Court, ib. s. 6. .363. principles to be acted on except in dissolution, ib. s. 22. .366. evidence taken by, admissible in Divorce Court, 226. EFFECTS of divorce (see Dissolution). of judicial separation (see Judicial Separation). on wife's choses in action (see Choses in Action). of restitution (see Restitution). of nullity (see Nullity). of jactitation (see Jactitation). ELEGIT, writ of, to enforce order or decree, 293, 294. see orders in chancery, 413. ENGLAND, what is, 3. ENLARGEMENT of time (Rules 121, 122, 123). .406. ENFORCEMENT of decrees and orders, 292, (See Rules of Chancery), Appendix II., 412. when registered in Common Pleas, 292. different methods, 293. on decrees directing payment of money, ib. sequestration generally, 294. attachment for contempt, ib. for threatening a suitor, ib. may be waived, 295. Irish peer, ib. where husband labourer, ib. leave for fi. fa., ib. married women without separate property, ib. bankrupts, 296. Digitized by Microsoft® INDEX. ' 521 EN FORCEMENT-coB«m/ed. for nonpayment of wife's costs, 296. allowed pursuant to arrangement, ib. practice, ib. payment of costs, ib, service of order, ib. payment of alimony, 297. second attachment, ib. previous demand, ib. personal demand unnecessary, ib. when order does not state to whom to be paid, ib. form of order, ib. specified time for obedience, 298. decree in restitution, ib. when notice not requisite, ib. indorsement on writ of attachment, ib. affidavit cannot be read if filed after notice of motion, ib. must be made by all parties, ib. not so strict in sequestration, ib. copy order annexed or recited, ib. costs of motion for, ib. power of Court after petition dismissed, 299. discharge from custody, ib. sequestration may issue without attachment, ib. what may be sequestered, ib. choses in action, ib. salaries and half- pay, 300. distinction between past and future services, ib. ERASURE in affidavit (see Affidavit), 219. ERROR, how far marriage invalidated by, 50, 51, 52. in names, ib. in status of parties, ib. ESTOPPEL, a defence in judicial separation, when suit on the same grounds previously dismissed in the Ecclesiastical Court, 107, 124. by judgments, 226. in rem, 227. inter partes, ib. intervener, ib. convictions, 228. should be pleaded, ib. EVIDENCE, 208. nature of, 209. oral, ib. rules as to, ib. open court, ib. of petitioner, 210. cannot support his case, ib. rule now modified, ib. intervention of Queen's proctor, ib. cross-examination of, 211. of parties, ib. in cruelty or desertion, 212. when set up in answer, ib. cross-examination of, ib. intervention part of original suit, 213. co respondent dismissed from suit, ib. rules at common law, ib. Digitized by Microsoft® 522 INDEX. E V I DENCE— continued. attendance of witnesses, how enforced, 213, subpoena and subpoena da. to., ib. confrontation not allowed in dissolution, 214. alitor in other suits, ib. may be made a condition in dissolution, id- affidavit (see Affidavits), when permitted, grounds for allowing 1 proof^ by, 215. when to be filed, 216. counter affidavits, ib. affidavits in reply, ib. deponent's cross-examination, 217. producing deponent, ib. order for leave to prove by, ib. before whom sworn, ib. Isle of Man, 218. Channel Islands, ib. foreign parts, ib. Scotland, Ireland, or colony, ib. how framed, 219. heading, ib. stamp, ib. intervention, ib. addition and residence of deponent, ib. admission of documents {see Admission), 220. notice to admit, ib. form of (see Form, No. 67), 492. when to be served, 220. production of documents, ib. form of notice (see Form, No. 69), 493. when necessary, 221. inspection, ib. letters ordered to be brought into registry, ib. interrogatories, ib. when to be applied for, ib. immediate examination, 222. commission to examine, ib. witness out of jurisdiction, ib. grounds for commission, 223. witness going abroad, ib, pregnancy, ib. great age, ib. witness recovering, ib. when refused, ib. re- opening commission, 22 1. mode of taking, ib, cross suits, 225. delay in application, ib. notice to examine, ib, evidence in extinct Ecclesiastical Courts, 226. estoppel (see Estoppel), ib. judgments in rem, 227. inter partes, ib. intervener, how far estopped, ib. convictions (see Convictions), 228. should be pleaded, ib, in particular suits, 229. proof of marriage, ib. Digitized by Microsoft® INDEX. 523 EVIDENCE— continued. identity must be proved, 229. by handwriting, tft. by cohabitation, 230. by admission, ib. photographs, ib. certificate, ib. reputation, 231. copy of register, ib. presumptions, 232. omnia prtesumuvtur rite acta, ib. non-parochial registers, 233. marriages abroad, ib. lex loci, ib. where no ceremony required, ib. evidence of lex loci, ib. by professors, 234. opinions of learned persons, ib. of marriages in ambassador's chapel, ib. in factory chape], ib. in British lines, ib. foreign registers, 235. Guernsey, ib. Chili, ib. Lisle, ib. Scotland, ib. Virginia, 236. where no register is kept, ib. Scotch registers, ib. Irish registers, ib. marriages in India, ib. in British colony, 237. Scotch clergymen in East Indies, ib. Indian registers, ib. Jews and Quakers, ib. both parties must be, 238. adultery, proof of, ib. testes htpinarum, 239. birth of a bastard child, ib. venereal disease, ib. admissions of parties, 240. collateral confirmation, ib. confessions, 241. when no other evidence, ib. evidence only against party wishing it, ib. identity, 242. confrontation, ib. cruelty (see Cruelty), ib. nullity (see Nullity), 243. EXAMINATION of petitioner, 210. not to be asked touching adultery, ib. cannot support his case, ib. cannot be cross-examineil in the first instance, 211. may be cross-examined to impeach credit, ib. in other suits, petitioner may be a witness, ib. of witnesses (see Witnesses). under commission (see Interrogatories.) of parts of generation (see Inspection). Digitized by Microsoft® '• 52 t INDEX. EXCUSE (see Separation and Co-respondent), 100. EXCUSING petitioner from making co-respondent, 167. EXECUTOR cannot revive abated suit for nullity, 47. EXILE, effect of, on domicil, 16. EXPENSE, saving of, as a ground for allowing petition to be proved b; affidavit, 215. EXTRAVAGANCE of wife, taken into consideration in allotting alimony, 136. EXUERE PATRIUM, 11. FALSE name in marriage celebrated by licence, 50. by banns, 51. FATHER, right to custody of children at common law, 126. Court will not take away right, unless cause shown, ib. right to sue for nullity of the marriage of his child, 46. FEAR, marriage contracted under, void, 61. FEES, Court may regulate (20 & 21 Vict. e. 85, s. 54), 372. regulations to be laid before Parliament (ib. s. 67), 375. to be collected by stamps (ib. s. 60), 373. Table of, Appendix III., 417. Additional Table of, 418. to be taken for their own use, by attornies, &c, 419. for the use of other persons, 421. (See Costs, Bills of). FELONY, imprisonment under, how far desertion, 41. not " wilful misconduct conducing to adultery," 102. conviction for, no evidence (see Conviction). does not disentitle wife to alimony pendente lite, 134. FIERI FACIAS, writ of, to enforce decree or order, 293, 291 (see also Orders in Chancery, App. III. 413). FINAL decree, what is, 60. FORBEARANCE to sue, not condonation in wife, S7. FORCE, marriage contracted under, void, 61. FOREIGN divorces, how far acquiescence in husband adultery (see Con- nivance), 76. marriages, lex loci contractus, 333. parts, who may administer oaths in, 218. registers (see Register), 235. FOREIGNERS, who are, 3. may be subject to jurisdiction of Court, 5, 19. aucere, as to dissolution of English marriage by, 19. (See also Witness, Interrogatories), married to Englishmen, 3, 235. FORGIVENESS, when condonation, 84. FORMA PAUPERIS, 203. petitioner must lay case before counsel, ib. leave of the judge, 204. assignment of counsel and attorney, ib. must appear by, ib. who may sue in, ib. pauper failing to proceed, ib. Digitized by Microsoft® INDEX. 525 r ORMA P^t7P£iJ/5-continued. on appeal, 205. Rules as to (No. 25, 26, 27), Appendix II. when party suing in, entitled to costs, 284. ORMS, act on petition (No. 9), 460. admit notice to (No. 67), 492. adultery (see Forms of Petition Answer). affinity (see Petition, No. 32). affidavit, to found motion for increase of permanent alimony (No. 40), 476. in support of motion for decree absolute (No. 12), 462. to accompany petition (No. 43), 478. to accompany answer (No. 44), ib. to ground application for an order to protect a wife's earnings (No. 45), 479. to found motion for interim order for custody of children (No. 46), ib. of next friend on petition of infants by such next friend (No. 49), 4S2. of service of citation (No. 5), 458. of service and non-appearance (No. 51), 485. of justification (No. 52), ib. for motion for commission to examine witnesses (No. 66), 492. to obtain inspection of documenton behalf of respondent (No. 68), 493. alimony, petition for (No. 13), 462. answer to (No. 39), 476. case for motion for attachment for non-payment of (No. 74), 496. affidavit to found motion for increase of (No. 40), 476. answer, to petition for dissolution (No. 7), 459. to act on petition (No. 9), 460. affidavit to accompany (No. 44), 478. by wife to petition for dissolution alleging counter charges (No. 36), 474. injudicial separation, 475. to petition for nullity alleging impotence (No. 37), ib. alleging bigamous marriage (No. 38), ib. to petition for alimony (No. 39), 476. order to answer in appeal (No. 80), 498. of respondent in appeal (No. 81), 499. appearance, entry of (No. 6), 459. under protest (No. 22), 467. appeal, instrument of (No. 11), 461. notice of (No. 76), 497. certificate on (No. 77), ib. petition of (No. 78), 498. certificate of counsel on (No. 79), ib. order to answer in (No. 80), ib. answer of respondent in (No. 81), 499. application for a protection order (No. 19), 465. affidavit to ground (No. 45), 479. of settled property, petition for order as to (No. 48), 481. for payment of money out of Court, notice to be filed in registry on making (No. 56), 487. for rule nisi for new trial, grounds of (No. 71), 494. Digitized by Microsoft® 526 INDEX. FORMS— continued. appointment of inspectors and order of inspection (No. 59), 488. attachment (see case for, No. 44). attorney, order on summons on change of, by husband (No. 64), 491. by wife (No. C5), ib. bigamy with adultery (see Petition, No. 24). bond for securing wife's costs (No. 21 ), 466. minute on deposit of (No. 53), 486. minute on cancelling (No. 55 ), 487. cancelling bond, minute on (No. 55), ib. case on motion for directions (No. 72), 495. to be excused making a co-respondent (No. 73), ib. for motion lor attachment (No. 44), 496. to dismiss petition (No. 75), ib. certificate, of service of citation (No. 4), 458. on appeal (No. 77), 497. of counsel (No. 79), 498. change of attorney (see Attorney, Nos. 64, 65). * children (see Forma of Custody of, Infants). citation (No. 2), 457. praecipe for (No. 3), 458. certificate of service of (No. 4), ib. affidavit of service of ( No. 5), ib. and non-appearance (No. 51), 485. commission to examine witnesses (No. 20), 465. affidavit for motion fir (No 66), 492. conclusion on act on petition (No. 9), 460. costs (see Bond, Payment into Court, Nos. 21, 54, &c.) counsel (see Certijirule, No. 79). cruelty (see Forms of Petition, Answer). conjugal right, petition for restitution of (No. 33), 472. co-respondent (see Forms of Cases, Damages.) custody of children, affidavit to found motion for (No. 46), 479. petition by wife for, after decree (No. 47), 480. damages, petition claiming (No. 35;, 473. demurrer, form of (No. 41 ), 477. deposit of bond (see Bond, No. 53). desertion, petition alleging (No. 27), 470. directions, case on motion for (No. 72), 495. dismissal of petition, case oti motion for (No, 75), 496. earnings, affidavit to ground order for protection of (No. 45), 479. election of guardian (No. 14), 463. entry ol appearance (No. 6), 459. under protest (No. 22), 467. examination of witnesses, commission for (No. 20), 465. affidavit for motion for ( No. 66), 492. fact, questions of, for jury (No. 8), 459. guardian, election of (No. 14), 463. impotence (see Petition, No. 29 ) incestuous adultery (see Petition, No. 23). increase of alimony (see Affidavit, No. 40). infant (see Custody of Children). affidavit of next friend on petition of (No. 49), 482. petition by next friend (No. 50), 483. guardian of, election of (No. 14), 463. inspection of documents, affidavit to obtain (No. 68), 493. order for, in nullity (No. 59), 488. Digitized by Microsoft® INDEX. 527 TOK.MS — continued. inspector, appointment of (No. 59), 488. oath administered to (No. 60), 489. minute on being sworn, and parties appearing for identification (No. 61), 490. minute on bringing in report of (No. 62), ib. on opening report of (No. 63), 491. issue (see Replication, No. 42). interrogatories (see Commission, No. 20). jactitation (see Petition, No 34). judicial separation (see Petitions, Nos. 26, 27), 469. jury (see Fact, Questions of, No. 8). justification, affidavit of (No. 52), 485. lunacy (see Petition, N". 30). motion (see Forms of affidavits, Case). notice of (No. 70), 494. for directions, case for (No. 72), 495. to be excused making co-respondent, case for (No. 73), ib. for attachment for non-payment of alimony, case for (No. 74), 496. to dismiss petition, case for (No. 75), ih. new trial, grounds of application for (No. 71), 494. next friend (see Forms in Infant). notice, on application for payment of money out of registry (No. 56), 487. to admit documents (No. 67), 492. to produce (No. 69), 493. of motion (No. 70), 494. of appeal (No. 76). 497. nullity (see Forms of Petition, Answer). oath administered to inspectors (No. 60), 489. payment into Court of costs, minute on (No. 54), 486. registrar's minute on ( No. 58), 488. out of court, notice to be filed in registry on (No. 56), 487. receipt on (No. 57), 488. petition for dissolution (No. 1), 457. act on (see Act, No. 9). for reversal of decree (No. 10), 461. for alimony (No 13), 462. by wife for dissolution, alleging incestuous adultery (No. 23), 467. bigamy with adultery (No. 24), 468. rape (No. 25), 469. for judicial separation, alleging cruelty (No. 26), 469. desertion (No. 27), 470. for nullity, alleging undue publication of banns (No. 28), ib. impotence ( No. 29), 471. lunacy of petitioner (No- 30), ib. bigamous marriage (No 31), 472. affinity (No. 32), 472. for restitution of conjugal rights (No. 33), ib. for jactitation (No. 34), 473. for dissolution claiming damages (No. 35), ib. affidavit to accompany (No. 43), 478. by wife for custody of children (No. 47), 480. for order as to settled property (No. 48), 481. by infants by next friend (No. 50), 483. of appeal (No. 78), 498. precipe for citation (No. 3), 458. Digitized by Microsoft® 528 • INDEX. FO RMS — continued. preecipe for citation — continued. for subpoena ad test. (No. 16), 464. for subpoena du. te. (No. 18), 465. produce, notice to (No. 69), 493. protection order, application for (No. 19), ib. affidavit to accompany (No. 45), 479. protest (see Appearance, No. 22). questions of fact for jury (see Fact, No. 8). rape (see Petition, No. 25). record (see Fact, No. 8). replication (No. 42), 478. report of medical inspectors (see Inspectors, Nos. 62, 63). requisition (see Commission, No. 20). restitution of conjugal rights (see Petition, No. 33). reversal of decree, petition for (No. 10), 461. service of citation, affidavit of (No. 5), 458. and non-appearance (No. 51), 485. certificate of (No. 4), ib. settlements, petition as to (No. 48), 481. subpoena ad testificandum (No. 15), 463. precipe for (No. 16), 464. duces tecum (No. 17), ib. precipe for ( No. 18), 465. testificandum (see Subpoena, No. 15). FRAUD, marriage procured by, void, 61. if one party innocent, guilty party is bound, 50. by third parties will not avoid marriage, 55. GRETNA GREEN registers as evidence, 235. GROSS sum of money secured to wife, 142. GUARDIAN, suit of nullity by, 46. service of citation on minor, in presence of, 177. appearance by, 182. costs against, 378. GUERNSEY, registers in, as evidence, 235. HABEAS CORPUS (see Custody of Children). HANDWRITING, identity proved by, 242. in the register of parties to a marriage (see also Identity), 229. HEADING of affidavit (see Affidavit), 219. of affidavit to accompany petition, 166, 478. H FARING, meaning of the word, 192. rules of Common Law Courts to be observed, 244. right to begin, ib. where Judge Ordinary sitting without jury, 245. how much petitioner to prove, ib. witnesses in reply, ib. where party appears in person, 246. priority of counsel (see Counsel), ill. no counsel appearing, petition may be dismissed, «6. evidence at, 247. Digitized by Microsoft® INDEX. .529 HEARING— continued. cross-examination by co-respondent, 247. counsel for respondent, his summing up, ib. for co-respondent, when to address the court, ib. by examining respondent's witnesses, adopts them, ib. adjournment, 248. of appeal (see Appeal), 269. HOME, means domicil, 5. HOUR of the day enjoined for marriage, 58. HOUSE of Lords (see Appeals). HUSBAND, liability to wife's costs (see Costs). may establish his own incompetency as witness, 59. petition for dissolution by, 22. IDENTITY, may be proved by direct or circumstantial evidence, 229. by handwriting in register, ib. by cohabitation, 230. by acknowledgment of respondent, ib. but not by a mere appearance to the citation, ib. photograph how tar evidence of, ib. parties cannot in suits for dissolution be ordered to be confronted, ib. semble, aliter in other suits, ib. of parties charged with adultery, 242. ILL behaviour, no excuse injudicial separation for adultery, 105. may be to judicial separation on other grounds, ib. ILLEGITIMATE relations prohibited from marrying, 60. IMBECILITY avoids marriage, 61. IMMEDIATE examination, 222. IMMORALITY of husband disentitling him to custody of children, 128. IMPLIED condition in condonation, 89. IMPOTENCE (see Nullity, Grounds for). at the time of marriage and incurable, avoids marriage, 63. supervening does not, ib. triennial cohabitation generally required, 64. when triennial cohabitation may be dispensed with, 65. as to inspection for (see Inspection). at the time of marriage a good plea to petition for dissolution on the ground of adultery, as amounting to a traverse of the marriage, 22, 74. supervening, no defence to a suit instituted in consequence of adul- tery, 108. an answer to restitution, 113. INATTENTION, mere, not connivance, 75. INCEST, false charge of, how far cruelty, 33. INCESTUOUS adultery, 23. definition of, by statute, ib. prohibited degrees set out in Common Prayer Book, ib. whether legitimate or not, ib. (See Dissolution). INDECENT liberties allowed by wife reasonable excuse for separation, 101. B. A A Digitized by Microsoft® 530 INDEX. INDIA, marriages in, 236. registers of, 237. Scotch clergymen in, ib. INDIFFERENCE to wife's conduct, how far connivance, 77. INDIRECT motives as an answer to a suit for nullity, 109. INFIDEL marriage not recognized in Divorce Court, 4. INFORMALITY in celebration of marriage (see Nullity, Marriage). INJUNCTION granted on a deed of separation, 114. INATTENTION, not connivance, 75. INNOCENT, wife considered, in allotting alimony, 133. INSANE, party married whilst, may institute suit on recovery, 61. marriages of the, under trustees, void, unless declared sane before mar- riage, 62. practice when petitioner for custody of children is, 128. INSANITY, injuries inflicted by husband under, how far cruelty, 32. marriage whilst a party is in a state of, void, 61. wife's, no answer to her suit for restitution of conjugal rights, 117. effect of, on domicil, 16. INSOLVENT, cannot be ordered to pay alimony, 134. INSPECTION, order for, 67. always required in nullity for impotence, ib. if respondent refuses to submit to, his admissions are evidence, 68. party applying for must be ready to submit to, ib. may be dispensed with by consent, ib. not now always indispensable, ib. petitioner need not call on respondent to submit to an operation, 69. monition for, now abolished, and order substituted, 208. of documents, semble, Court has power to order (see Documents), 221. INSPECTORS, appointment of, to be moved for, after service of order or monition, 69. practice as to, ib. INSTALMENTS of a debt, payment of, considered in alimony, 139. INSTRUMENT of appeal (see Forms, No. 11), 269. INSULT, mere, not cruelty, 31. INTENTION, necessary to constitute connivance, 75. INTERIM orders (see Children, Custody of), 125. for alimony (see Alimony). INTERLINEATION in affidavit (see Affidavit), 219. INTERLOCUTORY motions, costs of (see Costs), 277. INTERROGATORIES (Rules 129 to 137), 407. when to be applied for, 221. immediate examination, 222. commission, ib. generally after issue, ib. rule sometimes relaxed, ib. application founded on affidavit, ib. form of affidavit (see Forms, No. 66), 492. grounds for witness, out of jurisdiction, 222. going abroad, 223. Digitized by Microsoft® INDEX; 531 INTERROGATORIES— continued. when medical affidavit required, 223. pregnant woman, ib. great age, ib. witness recovering, ib. when refused, ib. re-opening commission, 221. mode of taking, id. , payment of wife's costs for, by husband, ib. practice in cross suits, 225. notice, what required, ib. INTERVENERS, estoppel as against, 226. in custody of children, 127. INTERVENTION, 248. two jurisdictions, 249. of " any person," 250. or Queen's proctor, ib. ' leave to intervene, 251. two kinds of intervention, ib. ' " any person," ib. material facts not before the court, 252. intervener must be properly before the Court, ib. intervener cannot be a respondent or co-respondent, ib. Queen's proctor, 253. issues cannot be tried by Court alone, ib. leave to intervene without affidavit, ib. right cannot be defeated by change in prayer of petition, 254. judgment against petitioner by default, ib. delaying decree absolute to allow Queen's proctor to appear, 255, no costs to, unless collusion proved, ib. .' can only intervene in his official capacity, when he alleges collu- sion, ib. Court cannot order petitioner's attendance, 256. r but may stay proceedings, ib. or dismiss petition, ib. decree absolute in six months, ib. the search for appearance, ib. no right to a decree, 257. Court may delay to allow Queen's proctor to make inquiries, ib. in custody of children, ib. under the ancient jurisdiction, ib. when party incompetent as a witness in, 213. costs of (see Costs). INTOXICATION, habits of, not cruelty, 29. INVESTMENT of damages obtained from adulterer, 122. IRELAND, a foreign country for purposes of divorce, 3. marriages in, 236. registers of, ib. who may administer oaths, &c, in, 218. IRISHMAN a foreigner, 3. ISLE of Man, not within United Kingdom, 4. who may administer oath, &c, in, 218. ISSUE, power of Court to direct (see Practice), 190. if case tried before a jury, stated in form of a record, 191. in law (see Demurrer). aa2 Digitized by Microsoft® 532 INDEX. JACTITATION of marriage, 71. what is, ib. Court can decree silence on offender, ib. party to the marriage only can sue, ib. answers to, 1. denial of the boasting, 117. 2. setting up of the marriage, ib. 3. that petitioner allowed respondent to assume the character, ib. JEWS, marriages of, 55. marriages of, excepted from Marriage Acts, 237. notice to be given, 238. both parties must be Jews, ib. JOINTURE of wife (see Settlements). JUDGE Ordinary constituted, 20 & 21 Vict. t. 85, a. 8.. 363. his authority, ib. s. 9, ib. increased by 23 & 24 Vict c. 144, s. 1 • . 382. who to actir. his absence, 20 & 21 Vict. t. 85, s. 11. .363. salary of, ib. s. 65. .375. sits in chambers, 21 & 22 Vict. t . 108, s. 1..376. his power, ib, s. 3, ib. over decrees as to costs, ib. s. 14.. 379. over attorney, Stc, ib. s. 15, ib. may grant new trial, ib. s. 18, ib. to be made absolute by full Court, ib., ib. appeal as to new trial (see Appeal, New Trial). his precedence, 22 Si 23 Vict. c. 61, s. 3.-382. of assize, issues may be tried before, 20 & 21 Vict. u. 85, s. 40. .370. (See also Practice), ISO. JUDGMENTS, estoppel by, 226. JUDICIAL separation, 20 & 21 Vict. c. 85, ss. 7 and 16.. 25. decisions in Ecclesiastial Courts binding. 26. grounds must be such as per quod consortium amiltitur, ib. usual grounds, adultery, ib. cruelty (see Cruelty), ib. desertion (see Desertion), 38. sodomitical practices (see Sodomitical Practices), 42. defences to, 1. adultery of petitioner, 103. distinction between this defence in judicial separation and dissolution, 104. (a) in judicial separation an absolute bar, in dissolution a discretionary one, ib. (b) in judicial separation no distinction between adul- tery before or after cause of suit, in dissolution otherwise, ib. (c) in judicial separation less proof required for charge in an answer than in a petition, in dissolution the same, ib. quare, is adultery a defence to a petition on the ground of cruelty ? 105. 2. cruelty no answer to a charge on ground of adultery in judicial separation, ib. alitor, in dissolution, ib. but admissible if coupled with adultery, 106. an answer to petition on any other ground, ib. Digitized by Microsoft® INDEX.. 533 JUDICIAL separation — continued. other usual defences, connivance, 106. condonation, ib. collusion, ib. desertion, ib. wilful separation, ib. desertion or wiltul separation no defence to petition on the ground of adultery, 107. petition for reversal of, 118. JURISDICTION, subject matter, 1. original petitions, ib. subsidiary petitions, ib. 1. allegiance, 2. what is, ib. children born abroad, ib. of ambassadors, ib. woman married to subject, 3. privileges, the right of the children, ib. 2. locus contractus, ib. meaning of word foreign, ib. Ireland and Scotland, ib. England, 4. Isle of Man, ib. Channel Islands, ib. colonies and plantations, ib. meaning of " marriage," ib. 3. domicil (see Domicil), 5. 4. Incus delicti, 18. want of, cured by absolute appearance, 20. dissolution of marriage, 21. judicial separation, 25. nullity, 43. restitution of conjugal rights, 69. jactitation of marriage, 71. reversal of decree of judicial separation, 118. damages against adulterer, 119. custody of children, 127. provision for wife, 131. settlements, 154. protection to deserted wife's earnings, 157. over what persons, 2. foreigners, ib. lunatics, 21. Court has none, in custody of children till petition filed, 127. rules do not apply to such a petition, 128. JURY, questions may be tried by common or special, 20 & 21 Vict. c. 85, s. 36. 369. (see also Practice), 190. how summoned, 20 & 21 Vict. c. 85, s. 37.-369. judge has power of nisi print, ib. s. 37 ; (see Judge of Assize), 370. Court will generally order, if asked, 190. when demandable as a right, ib. order may be conditional, ib. . ,. . . cannot be ordered as to discretionary defences in dissolution, 191. must be in claim for damages, 190. Digitized by Microsoft® 534 INDEX. KNOWLEDGE of the prior marriage no answer to a suit for nullity on the ground of bigamy, 59. LACHES (see Belay, Neglect). LANGUAGE, infamous, not cruelty, 29. LAPSE of time in nullity, 43. LEASE, effect of on domicil, 14. LEAVE to appear, 183. to file answer, 184. to try by affidavit, order must be drawn up, 217. to intervene to Queen's proctor, 251, 253. LETTERS (see Documents). LEX LOCI CONTRACTUS, marriage in accordance with form valid, 44. otherwise as to essential requisites, ib. omnia prcesumuntur rite acta, 232. extends only the forms of marriage, 44, 233. mere cohabitation, 233. evidence of, may be given, ib. parol evidence, ib. professors of the law, ib. written opinions of learned men, 234. certified adjudication of tribunals, ib. person in trade, ex necessitate, ib. Roman Catholic, vicar Apostolic, ib. French vice-consul and printed edition of Cinq Codes, ib. Chilean merchant, ib., and 235. competency of witness question for the Court (see Foreign Registers — Evidence), 234. ambassador's chapel, or factory, ib. one party British other a foreigner, 235. LICENCE, special, 48. how obtained, ib. where granted, ib. stamp, ib. ordinary's, ib. who may grant, ib. how obtained, ib. the oath, ib. penalty if false, ib. residence for fifteen days, 50. consent of person whose consent is required (see Nullity of Mar- riage), ib. both parties must be cognizant of informal celebration to avoid marriage, ib. false name, ib. guilty party bound by fraud, ib. superintendent registrars (see Dissenters), 55. LIEN, attorney's, on costs, 285. LINES of the British army, marriages in, 234. LISLE, old registers of as evidence, 235. LOCUS CONTRACTUS, 3. English, 19. foreign, ib. Digitized by Microsoft® INDEX. 5 35 LOCUS DELICTI (see Jurisdiction), 18. LODGINGS, effect of, on domicil, 12, 14. LUNATIC cannot be sued in dissolution, 21. committee of, may maintain suit for judicial separation, ib. how served with citation, 178. marriage of, void, 61. on recovery may institute suit for nullity (see Insane), ib. MAGISTRATES (see Protecting Order). MAINTENANCE of children, on decree for wife's adultery, Court may order settlement of her pro- perty for children, 154. cases of, 155. cannot interfere with wife's power of appointment, ib. larger power after final decree over settlement, ib. cases of, 156. of wife, costs (see Alimony, Protecting Order). MALFORMATION (see Impotence). MARRIAGE, what is a, 4. must be Christian, ib. requisites for, 44. 1st, the form, ib. 2nd, the place, ib. 3rd, the parties, ib. 4th, their consent and ability, ib. distinction between these requisites, ib. when void by reason of informality, 47. 1st, special or ordinary licence (see Licence), 48. banns (see Banns), 51. licence or certificate of superintendent registrar (see Dissenters), 55, 56. before whom to be celebrated, 57. person in holy orders, ib. registrar or superintendent registrar, ib. 2nd, where to be celebrated, ib. parish church or public chapel, ib. church, chapel, registered building or office specified in notice and certificate, 58. hour of the day, ib. 3rd, between single persons, ib. divorced wife remarrying before time for appeal expired, 59. not within the prohibited degrees (see Consanguinity and affinity). 4th, consent (see Consent), 61. ability (see Impotence), 63. void an answer to a claim for damages, 1 24. must be proved before application for alimony, 132, 133. proof of (see Evidence), 229. of Roman Catholics, 232. celebrated abroad (see Lex loci contractus), ib. registers of (see Registers), 231. Scotch, 236. Irish, ib. Indian, 237. by Scotch clergy in India, ib. Jews and Quakers, ib. proof of, in nullity, 243. Digitized by Microsoft® 536 INDEX. MEDICAL certificate in nullity, 66. MERGER of wife's domicil (see Domicil), 7. MILITARY service, effect on domicil (see Domicil), 17. MINORS, service of citation and petition on, 177. marriage of abducted, void, 61. petition by, 21. MISCONDUCT, however gross, no bar to nullity, 59. as a discretionary defence to adultery, 102. felony not, ib. must be marital misconduct, ib. expoing wife to temptation, ib. must be after marriage, 103. must be one of the acts specified in the 31st section, ib. of petitioner, its effect on costs (see Costs), 286. MISNOMER in citation, cured by respondent appearing, 171. MISTAKE, when it will not avoid marriage, 50, 51. distinction between licence and banns, 52. when it will avoid marriage, ib. MITIGATION of damages (see Co-respondent), 124. MODE of trial, motion for directions as to (see Practice), 1S8. MONITION now abolished in form, and order substituted (see Motions), 208. MONTHLY payment for alimony, 143. MORAL iniquity not cruelty, 28. MORMON marriage not valid, 4. MOTHER cannot revive father's abated suit for nullity, 47. MOTIONS, 205. same as at common law, ib. distinction in practice, ib. notice of, ib. form of (see Appendix IV., No. 70), 491. service of, ib. documents to be filed, ib. copies to he delivered to other side, ib. case for, 206. day for, ib. reckoning of time, ib. ei parte applications, ib. list of applications expressly directed to be made by motion, 207. monitions not now used in form, ib. rules or orders on motion now granted instead of monitions, 20S. unnecessary appearance on (see Costs), 291. for directions, 188. how to prepare it (see Practice), ib. to dispense with co- respondent (see Co-respondent), 166. to substitute service (see Service), 172. to reform pleadings (see Demurrer), 195. for order as to settlements, 157. for alimony pendente lite (see /Mmony), 13*2. for permanent alimony (see Alimony), 142, 144, MOTIVE, immaterial in cruelty, 31. Digitized by Microsoft® INDEX. 537 NATURAL born fathers, children of, 3. subjects, wives of, ib. NAVAL service, effect on domicil, 16. NEGLECT, a discretionary dpfence to dissolution, 102. must conduce to the adultery, ib. what is, ib. NEGLIGENCE, mere, not connivance, 75. NEW TRIAL, principles on which granted, 258. when verdict against evidence, ib. must be error or miscarriage, ib. surprise, 259. against the weight of evidence, ib. security for costs, ib. when Court dissatisfied with some of the issues, 260. inconsistent verdict, ib. mistake, ib. dismissing petition after verdict, 261. when issue tried at assizes, ib. affidavit for motion to dismiss petition, ib. form of grounds for application for (see Forms). effect of application tor. 261. costs of (see Costs), 262, 281. postponement of, ib. NOMINAL damages no ground for allowing petition to be proved by affi- davit, 215. NON-ACCESS (see Access). NON-CONSUVIMATION of marriage, no plea to dissolution at suit of husband, 22. NON-PAROCHIAL registers as evidence (see Eoidence), 233. NOTARY abroad, affidavit sworn before, what must appear, 218. NOTICE of motion (see Motion), 205. to produce (see Documents), 220. to admit (see Documents), ib. to examine witnesses under commission, 225. of trial ten days after filing record, 193. of marriage, form of, 328. to superintendent registrar, 55. of appeal, 266. form of (see Forms, No. 76), 497. NOT1TIA PROBABILIS, 83. NULLITY, grounds for, 43. principles those of the Ecclesiastical Courts, ib. presumption in favour of marriage, ib. when suit to be preferred, ib. lapse of time, ib. age of parties material, 43. qusere any limit as to age, ib. after decree of separation for adultery cannot be entertained, 44. requisites to make marriage valid (see Marriage), ib. ground must exist at time of marriage, 46. who may prefer, ib. wife's father, ib. minor by guardian, ib. minor's father, ib. contingent interests, ib. A A 5 Digitized by Microsoft® 538 INDEX. NULLITY— continued. who may prefer — continued. persons in remainder, 47. requisites to a valid marriage, ib. clergyman's duty, 48. special licence, ib. ordinary's licence, ib. the oath required for, 49. residence, fifteen days, 50. consent of person whose consent required, ib. false name, ib. banns, 51. misdescription, ib. distinction between banns and licence, 52. illegitimate children, ib. assumed name, 53. concealed name, ib. additional name, ib. personation of another, 54. the rubric, 55. witnesses, ib. superintendent registrar's licence, ib. registrar's certificate, 56. residence and consent, ib. presence of priest or registrar, 57 where to be celebrated, ib. the parties, 58. single persons, 59. persons divorced, ib. consanguinity and affinity, 60. what degrees are prohibited, ib. consenting, 61. duress, ib. fraud, ib. incapacity of mind, ib. recovery during trial, 62. incapacity of body, 63. onus probandi, ib. must be permanent, ib. triennial cohabitation, 64. when dispensed with, 65. proof aliunde, ib. visible defect, 66. medical certificate, ib. partial connection, 68. order for inspection, ib. petitioner must be ready to undergo, ib. inspection not always necessary, ib. inspectors, how nominated, 69. answer to suit for, 108. cruelty no answer, ib. nor adultery, ib. as to essential requisites, no defence save traverse, 109. aliter as to formal requisites, ib. and 475. objection by wife to consummation, 109. delay, how far an answer, ib. indirect motives, ib. suit brought alio intuitu, 110. respondent may plead in maintenance of suit, 111. denial of triennial cohabitation, ib. Digitized by Microsoft® INDEX. 539 NULLITY— continued. answer to, 108. cruelty no answer, ib. adultery no answer, ib. objection by wife to consummation, 109. delay, how far, ib. to the essential requisites to marriage, no defence save traverse, 108. aliter as to formal requisites, ib. respondent may plead in maintenance of suit, ib. petition on the ground of impotence may be met by an answer denying triennial cohabitation, ib. if respondent succeed in such a case, order for return to cohabitation may be granted, if prayed for, ib. parent suing son and wife should show his right on face of petition, 165 should serve son and wife, 178. an answer to a petition for dissolution, 22. evidence of marriage in, 243. of other circumstances in, ib. OATH, who may administer (see Affidavit), 217. for licence for marriage, 49. OFFER to forgive, how far condonation, 84. by petitioner to return on conditions, how far condonation of deser- tion, 41. by respondent will not defeat established desertion, 42. OPEN Court, judge has no power to exclude public, 209. OPERATION, petitioner in nullity for impotence need not call on respond- ent to submit to, 69. OPINION of learned persons, how far evidence of foreign law, 234. ORAL evidence (see Evidence), 204. ORDERS of Court, how enforced (see Enforcements). rules, &c. (see Rules). for inspection, 67. for particulars, 161. ORDINARY'S licence, 47. who may grant, 48. how obtained, 49. marriage must be solemnized within three months, ib. penalty if oath be false, ib. residence taken as proved, SO. consent of person whose consent is required, ib. both parties must consent to informality to award, ib. or be cognizant of fraud, ib. must be error de persona, ib. false name, ib. PAPIST, marriage of, 232. (See Romanist), 117. PARAGRAPH (see Practice), 165. PARAMOUR, when not a party may be a witness, 241. PARENT (see Children). may sue for nullity of child's marriage, 46. his right must appear on face of petition, 165. PARTICULARS, when granted (see Practice) 161. Digitized by Microsoft® •540 INDEX. PARTIES, evidence of (see Evidence), 211. may be witnesses except when suit instituted in consequence of adul- tery, ib. in dissolution on wife's petition for adultery with cruelty or desertion, may give evidence as lo such cruelty or desertion, 212. but not in judicial separation for adultery, 213. inadmissible though petition not founded on adultery, when respondent seeks a decree for adultery, 212. aliter, if respondent pleads adultery without seeding decree, ib. cannot intervene after decree nisi, 252. PAUPERS (see Rules 25, 2(3, 27), 395. (See also Forma Pauperis), 203. PENDENTE LITE (see Alimony), 1.31. PERMANENT alimony (Alimony), 142. PERSONAL violence (see Cruelly). PERSONATION of another in marriage by banns, 54. PETITION (see Practice), 159. for custody of children (see Children), 126. should be divided into paragraphs, 165. after verdict for respondent, will not be dismissed for a month, 261. PETITIONER'S rights should appear on face of petition, 165. PHOTOGRAPHS as evidence of identity, 230. PLANTATIONS, foreign countries in divorce jurisdiction, 4. marriage celebrated in, 237. PLEADING (see Practice). POLYGAMY, marriages not here recognized in countries which allow of, 4. POSTPONEMENT of new trial, 262. POVERTY no ground for trial by affidavit, 215. POWERS of Court over settlements (see Settlements). children (see Chilarett). over other matters (see Jurisdiction and Judge Ordinary). of appointment by wife cannot be interfered with by the Court, 155. PRACTICE, 159. directions for drawing petition, ib. heading of petition, ib. claim for damages included, ib. copy of petition must be served on all respondents, 160. facts to be set out in petition, i!>. evidence of subsequent facts may be given, ib. but not of prior acts, ib. evidence not to be pleaded, 161. degree of particularity required, ib. when order for particulars granted, ib. instances of particulars being ordered ib. vagueness no ground for demurrer, 16i. right of petitioner should appear on face of petition, 165. paragraphs of petition, ib. prayer of petition, ib. affidavit in support of petition, 166. heading of, ib. not to be used except to verify petition, ib. Digitized by Microsoft® INDEX. 541 PRACTICE— continued. co-respondent to be made, 166. when petitioner excused from (see Adulterer, Special Grounds), 167. praecipe (see Prcecipe). 170. address (see Address), ib. citation (see Citation, Service), ib. misnomer (see Misnomer), 171. parent annulling son's marriage must serve both parties, 178. appearance (see Appearance), 179. distinction of principle between Divorce Court and Courts of Common Law, ib. affidavit in case of no appearance, 180. when to be filed, 181. entry of appearance, ib. leave to appear, ib. by guardian, 182. effect of, without filing answer, ib. when granted, 183. directions for entering an appearance, ib. answer (see Answer), 181. leave to file, ib. further, a waiver of objection to form of petition, ib. affidavit accompanying, ib. pleading several matters, 185. collusion or connivance to be negatived, ib. prayer in distinction between dissolution and other suits, ib. in dissolution, formerly no relief granted to respondent, ib. aiiter, in other suits, ib. now altered by 29 & 30 Vict. c. 32. directions for filing answer, 187. replication and subsequent pleadings, ib. affidavit to accompany, ib. directions for filing, ib motion for directions (see Directions), 188. directions for, ib. after motion petitioner may set down cause, 189. pleadings must be complete, ib. erlect of his delay, ib. power of Court to direct issues, 190. right to a jury, ib. in dissolution, parties may demand jury, ib. but not in other suits, ib. must have a jury in claim for damages, ib. does not extend to discretionary defences in issue, 191. record, ib. amendment of, 192. will be taken to the correct issues, ib. setting down cause, ib. trial, ib. hearing, ib. petitioner failing to set down causes, 193. ten days to intervene, ib. notice of, ib. save by consent, ib. judge ordinary may sit alone, 194. demurrer, ib. party cannot plead and demur without leave, ib. striking out paragraph as objectionable, 19.5. reforming pleadings, ib. Digitized by Microsoft® 542 INDEX. PRACTICE— continued. demurrer — continued. distinction between motion to reform and demurrer, 195. mere vagueness no ground for demurrer, ib. party failing to join in demurrer, ib. leave to withdraw plea demurred to, 196. form of demurrer, Appendix IV., No. 41 (see Forms), 477. distinction between Divorce Court and Common Law Courts in demurrer, ib. instances of demurrers, ib. demurrers to evidence, 197. amendment, ib. obtained by motion and notice, ib. noviter ad notitiam perventa, 198. principles of, ib. facts subsequent to the citation, ib. adjournments for (see Adjournment), 199. when petition amended and re-served it must be re-entered, ib* after, when fresh citation required, 200. re-service after, ib. of petition, affidavit need not be resworn after, 201. costs of, against husband, ib. by striking out, ib. adding plea, 202. of decree nisi, ib. answer to amended pleading, ib. in appeals to the House of Lords (see Appeal). abatement (see Abatement), 202. formi pauperis (see Formd Pauperis), 203. PRAYER (see Practice), 165. PRECEDENTS (see Forms). PREGNANT woman, ground for interrogatories or commission, 223. PRAECIPE, mistake in, does not affect validity of proceedings, 170. but should be identical with citation, ib. PREMIUMS on insurance, when deducted in allotting alimony, 139. PRESBYTERIANS, registers of marriages of, 236. marriages of, in the East Indies, 237, PRESENCE of priest at marriage, 57. of registrar, ib. PRESENTATION of appeal, 266. PRESUMPTIONS in nullity in favour of marriage, 43. in marriage, omnia preesumuntur rite acta, 232. against connivance, 77. of cohabitation of married couples, 85. PRIEST, his presence necessary at common law at a marriage, 57. PRINCIPLES of Court in general, 21, 180. in dissolution, 21. in other cases, ib. PRINTED cases (see Appeal). PRIORITY of respondent's case at hearing, 246. PROCEDURE (see Practice). PROCESS (see Citation). (See also Orders in Chancery, 412.) Digitized by Microsoft® INDEX. 543 PRODUCE, notice to, 226. form of (see Form, No. 69), 493. PROFESSORS, their opinions, how far evidence of foreign law, 235. PROFLIGACY (see Immorality). PROPERTY (see Settlement). PROSTITUTE wife, a, excuse for proceeding without co-respondent, 168. PROSTITUTION of wife by husband's coercion, 96. PROTECTING order for a deserted wife, 157. when absence not desertion, ib. entry in the County Court merely directory, 158. citation not necessary for, ib. form of order, ib. affidavit for (see Form, No. 45), 479. must satisfy Court of the fact of desertion, 158. order should be for property generally, ib. does not deprive wife of right to alimony pendente Ute, 138. discharge formerly could only be discharged by magistrate who made, ib. but law altered hy recent act 27 & 28 Viot. ^. 44 . . 159 (see Ap- pendix I.), 385. PROTEST, appearance under, 20. form of (see Forms, No. 22), 467. PROVISION for wife (see Alimony and Protecting Order), 131. PROVOCATION, drunkenness of wife excuse for cruelty, 99. PUBLICATION of banns (see Banns), 51. notice to superintendent registrar in place of, 55, 56. QUAKERS, marriages of, 55, 237. QUEEN'S proctor (see Intervention), 258. costs of (see Costs), 290. RANK, distinctions of, considered in cruelty, 27. husband's, considered in allotting alimony, 136. wife's considered, 137. RAPE as a ground for dissolution at suit of wife, 24. doubt as to the proof of, ib. must be proved, proof of conviction insufficient, ib. evidence requisite, 25. REASONABLE excuses (see Separation), 100. RECOGNIZANCE, to be entered into within eight days after lodging appeal to the House of Lords, 267. appeal otherwise dismissed, ib. RECONCILIATION (see Condonation). RECORD, judge will direct issues in form of, 191. When to be filed, 192. if petitioner delay respondent may file, 193. parties bound by, though not identical with pleadings, 192. RECOVE RY of insane party during trial, 62. of damages, excuse for making co-respondent, 167. RECRIMINATION (see Countercharge). Digitized by Microsoft® 544 INDEX. REDUCTION of alimony (see Alimony), HO. REFRESHER fees allowed, 175. REGISTER, examined copy of, as evidence of marriage, 231. or one purporting to be signed by proper officer, ib. handwriting to, evidence of identity, 229. admissible in evidence on mere production, 231. production of, presumes a valid marriage, 232. certain non parochial, 233. foreign, 235. Scotch, 233, 235. Irish, 232, 236. Indian, 236. Jews and Quakers, 237. countries where no register is kept, 236. REGISTRAR, his licence, 55. his certificate, 56. his presence necessary at such a marriage, 57. affidavits may be sworn before, 217. RE-MARRIAGE, when allowed, 20 & 21 Vict. u. 85, s. 57.. 373, and 31 & 32 Vict. c. 77, s. 4, Addenda at the commencement, before, time allowed for appeal, void, 59. after decree absolute, 262. REPAIRS, outlay for, considered in allotting alimony, 139. REPLICATION (see Practice). to answer to petition for alimony, 152. should be on oath, 153. REPUTATION, as evidence of marriage, 231. REQUISITES to make marriage valid (see Marriage), ii. RESIDENCE for fifteen days requisite for a licence for marriage, 50. must be taken as proved, ib. as to marriage before registrar, 56. RESPONDENT, meaning of the word in the Rules, 169. may receive relief, 186. Court will not dismiss petition when respondent shows he is entitled to a remedy, 248. entering appearance by (see Practice). RESTITUTION of conjugal rights, petition for, 69. marriage must be proved, 70. ground for spouse withdrawing from cohabitation, ib. object of suit immaterial, ib. Court can only compel spouses to live together, 71. if wife guilty of adultery she cannot maintain suit for, although hus- band equally guilty, ib. answer to, 111. should generally show facts entitling respondent to a judicial sepa- ration, 112. exceptions, ib. respondent's delicate health, ib. petitioner incestuous, respondent conniving, ib. petitioner guilty of impropriety, ib. adultery of petitioner, ib. antenuptial incontinence, 113. cruelty, ib. Digitized by Microsoft® IKDEX. 545 RESTITUTION— continued. amount of evidence, 113. impotence, ib. deed of separation (see Deed of Separation), ib. award, 115. compromise, 116. wife's insanity no answer, 117. her being allowed by husband to become a nun, how far an an- swer, ib. should state cause of withdrawal, ib. REVERSAL of decree of judicial separation, 118. petition for, must set out grounds, ib. must be verified by affidavit, ib. absence means mere non-appearance, 119. effect of reversal, ib. REVIEWING taxation, 291. REVIVAL of cruelty, 35. of condoned offence, 88. principle of revival, 89. slighter offence will revive, ib. subsequent threats, ib. offences need not be ejusdem generis, ib. cruelty will revive adultery, and vice vers/!, ib. but cruelty to revive former cruelty, must be something similar, 90. desertion will not revive cruelty, ib. where condonation noticed by Court, without plea, revival allowed to be shown, 91. (See Condonation). RIGHT to begin (see Hearing), 244. plea of confession and avoidance, in restitution, ib. in dissolution, 245. argumentative traverse of marriage where judge sitting without jury, ib. on appeal to full Court appellant begins, 270. ROMANIST, wife becoming, and taking vows, how far answer to restitu- tion by husband, 117. RUBRIC, form prescribed by, merely directory, 55. RUDENESS, mere, not cruelty, 27. RULES, do not apply to petition for custody of children, 128. (186B), Appendix II., 392. Consolidated Orders in Chancery, ib., 412. SAVING of expense, no ground for trial by affidavit, 215. SCOTCH registers as evidence (see Evidence, Register), 235, 236. SCOTLAND, a foreign country for purposes of divorce, 3. who may administer oath in, 218. evidence of documents (see Evidence), 233. SEAL of the Court, 20 & 21 Vict. c. 85, s. 13. .364. SEPARATE property of wife (see Settlements). when a ground for not ordering husband to give security for costs, 276. SEPARATION, without reasonable excuse, as an answer to petition for dissolution, 100. what is reasonable excuse, ib. Digitized by Microsoft® 546, INDEX. SEPARATION— continued. wife submitting to indecent liberties, 101. husband in search of employment, ib. other cases, ib. may be reasonable though wilful, ib. facts should be succinctly stated, 102. by agreement no defence to petition for judicial separation on ground , adultery, 106. not even malicious desertion, 107. but sometimes material, ib. distinction between dissolution and judicial separation, ib. deed of, no plea to restitution of conjugal rights, 113. does not affect wife's domicil, 8\ private separation illegal, 113. in Courts of Equity tolerated, 114. injunction granted on one, ib. an answer to a claim against adulterer for damages, 124. judicial (see Judicial Separation). SEQUESTRATION (see Orders in Chancery, App. II.), 412. not granted against bankrupt or insolvent, 134. (See Enforcement of Orders and Decrees). SERVICE of citation (see Citation). of order to pay money, &c, 412. of order for alimony, 153. of order to answer on respondent in appeal, 267. military or naval, effect of on domicil, 16. SETTLEMENTS under 20 & 21 Vict c. 85, s. 45.. 154. power of Court where decree pronounced for wife's adultery, ib. deed ordered by Court, ib. where wife entitled to 4,000Z. for life, ib. Court cannot interfere with power of appointment, 155. where post-nuptial settlement, ib. no power to alter settlements, ib. interest which may never be realized, ib. under 22 & 23 Vict. c. 61, s. 5, ib. instances of orders made, \56. no power still to alter unless there be issue, ib. practice as to motion, 157. when co-respondent liable for costs of motion, ib. respondent not appearing, ib. notice to respondent, ib. SODOMITICAL practices, 42. ground for judicial separation, ib. attempt sufficient for judicial separation, ib. aliter, for dissolution, ib. proof conviction not sufficient, 43. SODOMY as ground for dissolution, 25. proof conviction insufficient (see Rape), ib. SOLICITORS (see Attornies). SPECIAL grounds for dispensing with co-respondent (see Co-respondent), 167- licence, for marriage, 48. distinctions between, and ordinary's, ib. granted by Archbishop of Canterbury, ib. stamp 51., ib. same forms for procuring, as ordinary's ib. jury, costs of, 285. Digitized by Microsoft® INDEX. 547 SPEEDY payment of damages against co-respondent cannot be ordered,123. SPES RECUPERANDJ, 87. SPITTING in wife's face, cruelty, 34. STAMPS, fees to be paid in (20 & 21 Vict. t . 85, s. 60), 373. provisions respecting, ib. duty on admission of attornies, &c. (ib., s. 63), 374. for special licence, 51., 48. STATUTES— 25 Ed. 3, st. 2 2. 25 Hen. 8, c. 21, s. 3 48. s. 8 ib. 43Eliz. c. 2, s. 7 47. 29 Car. 2, c. 6 2. 7 Ann. c. 5 3. 9& 10 Will. 3, c. 15. ...117. 4 Geo. 2, c. 21 3. 15 Geo. 2, c. 30 62. 20 Geo. 2, c. 42, s. 3.... 4. 26 Geo. 2, c. 33 54, 236, 237. 13 Geo. 3, c. 21 3. 51 Geo. 3, c. 37 62. 55 Geo. 3, t . 184, s. 1 48. 58 Geo. 3, c. 84 237. 3 Geo. 4,c. 75, s. 14 48, 54. 4 Geo. 4, t . 76.... 54, 57, 237. s. 7 54. s. 14 49. s. 16 ib. s. 17 ib., 50. s. 19.... 49. s. 20 48 ». 22.... 50, 51, 54,57, 58. s. 26.... 50. c. 91, s. 2. ...234. 6 Geo. 4, c. 87.... 218, 219. 9 Geo. 4, c. 31, a. 17 25. s. 18. ...24. s. 22 23, 24. c. 91.... 58, 234. 1 Will. 4, c. 22 223. 5&6WU1. 4, c.54, s. 1....60. s. 2....ib. s. 3 ib. 6& 7 Will. 4, c. 25, s. 1....48. t . 85 55, 56, 238. s. 1....56. s. 2. ...238. s. 4 55,238. s. 20 232. s. 25 56. a. 42.... 57, 58, 232. c. 86. ...237. 1 Vict. c. 22 55, 56. s. 36 56. 1 & 2 Vict. c. 110. ...293. 3&4 Vict. u. 72.... 55, 233. u. 92.... 233. 7 & 8 Vict. u. 66, s. 16 3. t . 81. ...236. Digitized by Microsoft® 548 INDEX. STATUTES— continued. 8 & 9 Vict. c. 113, b. 1 231. ». 5 233. s. 11. ...237. 10 & 11 Vict. v. 58. ...238. 13 & 14 Vict c. 21, b. 4. ...256. 14& 15 Vict. c. 40. ...211, 236, 237. c. 99 ....68. b. 2... B. 4... ». 7... s. 10... s. 14... b. 18... .211. .124. .234. .233. . 232. 235, 237. .233. 17 & 18 Vict. 0. 80 ....236. See Append ix 1 t 17 & 18 Vict. {Common Law Procedure Act, 1854, . Appendix /.), c. 125 .... 244. 18 & 19 Vict. c. 42 ....218, 219. 19 & 20 Vict. c. 96 236. c. 119 55. s. 20.. . . (see Appendix I. ). s. 2... .56. s. 6... .a. s. 9... .ib. 20 & 21 Vict. c. 77, , s, 25 . . . s. 27.. . ..293. .217. c. 85, s. 1 (see s. 3... s. 6... B. 7... B. 9... B. 10... • Appendix 7.) . . . . 196 .151. ..1, 42, 131, 185, 242. .1,25,227. ..258. ..394. 258. s. 16... ..1,26, 38,39,42, 227, 249. s. 21... .158. s. 22... .21, 26, 43,69, 95, 97, 104, 234. s. 23 . . . .1, 118, 119. s. 27.., ,.22, 23,24, 38,42, 79, 227. s. 28.., ,.166, 178, 190. s. 29.. ..74. s. 30.. ..ib., 242. s. 31... ..1, 74, 80, S8, 94, 98 196, 227,287. , 99, 100, 104, 107^ s. 32.. ..1, 132, 135, 143, 146, 148,-151. s. 33 . . . ..1. 119, 124, 125, 160, 190. s. 34.. ,.270, 286. s. 35... .1, 126,127, 12S, 129, 130, 257. b. 38... ,.191. s. 40... .190. b. 43 . . . ,.96, 210, 212, 213, 24i ', 255. s. 44 . . , ..248. s. 45.. ..1, 154, 155. s. 46.. . 209, 214,217. s. 47 . . ,.221. b. 48 . . . ,.209, 213, 220, 221, 210, 214. s. 49 . . ..213. s. 50 ..214. s. 51... ..266,270, 278. s. 52... ..292, 295. s. 54.. ..270. Digitized by Microsoft® INDEX. 549 STATUTES— continued. 20 & 21 Vict. c. 85, s. 55 . . . .262,268. s. 56 262, 266. s.57 48. 21 & 22 Vict. c. 108 (see Appendix [.) 5.... 1,209, 226. o. 6 157. =. 7....ib. a. S....ib., 158. s. 9....JA. s. 10 ih. ». 11 168, 213. =. 12.. ..217. s. 13 270. a. 14 ib. s. 16 218. s. 17 262. ». 18 258. s. 20 218. a. 21 ib. s. 22. ...219. s. 23 ib. 22 & 23 Vict, u . 61 (see Appendix I.) s. 4 127, 130, 131 ,257. o. 5 1, 154, 155, 1, 56, 203. s. 6 211, 212, 213, 243. 23 & 24 Vict. u , , 144 (see Appendix /.).... 249. s. 1....159, 194,258, 262. B . 2 262. 268. s. 3 262. s. 6.... 154, 211. s. 7 249, 270. 25 & 26 Vict. c. 81 (see Appendix /.)... .263. 27 & 28 Vict. t . 44 159. 29 & 30 Vict. t . 32 143, 256. S.2....186. statutes affectin; * marriage, 301. affecting particu lar places, 304. (The following are set out in Appendix I.) 4 Geo. 4, c. 76.. ...305. 6 & 7 Will. 4, c. 85 315. c. 86... 331. 19 8c 20 Vict. c. 119. ...347. 20 & 21 Vict. c. 85 (Divorce Act) 362. 21 & 22 Vict. c. 108.... 376. 22 & 23 Vict. c. 61 381. 23 & 24 Vict c. 144.... 382. 25 & 26 Vict. c. 81.. ..384. 27 & 28 Vict. c. 44. ...385. 29 Vict. c. 32 ib. 17 & 18 Vict. c. US (Common Law Procedure) 386. 30 & 31 Vict. c. 77 (Addenda at commencement). SUBPCENA, 213. duces tecum, ib . SUBSIDIARY decrees, 1. SUBSTITUTED service (see Citation), 172. SUMMONS, 208. rules respecting, 160 — 171 . . • .411. Digitized by Microsoft® ^550 INDEX. SUMMONS— continued. what applications must be by, 208. monitions disused, ib. SUPERINTENDENT registrar's licence, 55. how obtained, ib. notice to be given to, ib. his certificate, 56. SUPERVENING impotence no defence to judicial separation on ground of adultery, 108. or to suit for dissolution, 22. no ground for nullity, 64. SUPPOSITITIOUS licence of clergyman binds guilty party, 50. SURROGATE substitute for chancellor of the diocese, 49. SUSPENDARY decree to allow petition for alimony, &c, 143. TAXATION (see Costs), 281. rules as to (see Rules 151, el seq.) THREATS, how far cruelty, 28. may revive cruelty, 89. TIME, " months" mean " calendar months," 256. days to be reckoned exclusive of Sundays (Rule 123), 406. enlarging (Rules 121, 122), ib. specified for return of citation may vary, 172. for appeal (see Appeal), 263. TRAVERSE (see Denial of Facts alleged), 74. only defence to offences coupled with adultery, 75. may be pleaded with plea of condonation, 6ic, 91. TRIAL by oral evidence, 209. by affidavit (see Affidavit), 214. when permitted, ib. when not permitted, 215. grounds for allowing, ib. saving of expense, ib. witnesses abroad, ib. poverty of petitioner, ib. obtaining damages and consent of other side, ib. when affidavits to be filed, 216. counter affidavits, ib, affidavits in reply, ib. producing deponent, 217. order for leave to try by affidavit must be filed before hearing, ib. TRIENNIAL cohabitation required in nullity, 64. not where husband incurably malformed, 65. must be visible defect, 66. though granted on medical certificate, quoad hanc, ib. TURKISH marriage not valid, 4. UNNATURAL offences (see Sodomitical Practices). UNREASONABLE delay, as a discretionary defence to dissolution, 97. effect of excuses for delay (see Delay). VAGUENESS no ground for demurrer, 164. VALIDITY of marriage (see Nullity). Digitized by Microsoft® INDEX. 551 VENDITIONI EXPONAS, writ of (see Enforcement of Decrees), 412. VENEREAL disease evidence of adultery, 239. how far cruelty, 31. communication of, presumed wilful, ib. VISIBLE defect in nullity, 66. VIRGINIAN registers, 236. VOLUNTARY allowance to husband, no ground for alimony, 135. VOWS of chastity, husband allowing wife to take, how far an answer to res- titution at his suit, 117. WAIVER, further time a, of objection to petition, 184. WALES, a part of England in the Divorce Court, 4. WEEKLY payment of alimony, 143. WIFE, her grounds of petition for dissolution seven, 23. may be a witness to prove cruelty or desertion, 212. (See Dissolution). for judicial separation (see Judicial Separation). for nullity (see Nullity). for restitution (see Restitution). for jactitation (see Jactitation). for alimony (see Alimony). her costs (see Costs), 277. to custody of children (see Children). domicil of (see Domicil), 7. order of protection for her earnings, 157. WILFUL neglect must conduce directly to adultery, 102. felony not wilful neglect or misconduct, ib. what is, ib. husband leaving wife to improve his position, not, 103. WILFUL separation, without reasonable excuse, a discretionary defence to dissolution, 100. what is "reasonable excuse," ib. every answer to a suit for restitution, ib. wife submitting to indecent liberties, 101. discovery of antenuptial incontinence, 22. absenting to obtain employment, 101. living unhappily with wife no excuse, ib. a husband may not neglect his wife, 102. a defence to judicial separation, 106. but no defence to suit for judicial separation on ground of adultery, ib. WITHDRAWAL from suit, how far connivance at subsequent adultery, 78. from respondent's bed, plea of, no bar to suit for judicial separation on the ground of adultery, 106. cause of, should be stated in answer to petition for restitution, 117. WITNESS not absolutely necessary at a marriage, 55. attendance of, how enforced, 213. may declare or affirm, ib. (See Examinaton of Petitioner, Parties). difficulty of procuring, no ground for allowing petition to be proved by affidavit, 215. in reply, 245. Digitized by Microsoft® LONDON : [TED BY C. ROWORTH AND SONS, NEWTON STREET, HIGH HOLBORN. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®