affidavits, declarations, or affirmations, to be used in the Court for Divorce and Matrimonial Causes from persons residing in foreign parts out of her Majesty's dominions, the same may be sworn, declared, or affirmed before the persons empowered to administer oaths under the Act 6 George 4, chapter 87, or under the Act 18 & 19 Victoria, chapter 42; Provided that in places where there are no such persons as are mentioned in the said Acts, such affidavits, declarations, or affirmations may be made, declared, and affirmed before any foreign local magistrate or other person having authority to administer an oath there, 21 & 22 Vict. c. 108, s. 20.

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 authorized 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 Act 20 & 21 Vict. chapter 77, 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, 21 & 22 Vict. c. 108, s. 21.

DEMURRER.

This is a proceeding to delay or put off (demorari) the opposite party, on the ground that although the circumstances of his case may be admitted to be quite true and correct, yet they do not constitute a legal grievance against the respondent, or a legal answer to the petitioner's prayer.

Mr. Stephen, in his last edition of Blackstone, vol. iii. p. 570, says, "if the matter the declaration contains appear on the face substantially insufficient in point of law to entitle the plaintiff to the redress he claims, the defendant's course is to demur (from demorari) importing that he denies the sufficiency, and will wait the judg ment of the court whether he is bound to answer,"

At common law a demurrer must be in the form prescribed by 15 & 16 Vict. c. 76, s. 89.

Demurrers are also allowed, and are of not unfrequent occurrence in Chancery suits, but it would

seem doubtful whether they will be allowed in the Divorce and Matrimonial Court, for we find there is no mention made of them in either of the Acts, nor is there any form given for them in the First Rules and Orders of Hilary Term, 1858, or in the Second Rules and Regulations; and in Evans v. Evans, 6 W. R. 356, the Judge Ordinary, in answer to certain observations of the Queen's Advocate, was of opinion that under the act and rules there is no power to move the court to dismiss, or to take any step answering to a demurrer; but that a responsive plea must be given in. There is one case, however, now before the court, in which the petitioner has demurred to the respondent's answer. The more usual way hitherto has been to apply to the court to order certain paragraphs to be altered and amended, or for leave to amend, if the application comes from the party at fault. Allen v. Allen and D'Arcy, 5 Jur. 128.

MOTIONS.

A motion is an application made to the Judge Ordinary, or to the judges of the full court, in open court; and, at common law, it may be either incidental to an action, or it may be wholly unconnected with one.

In the superior courts it can be made by none but a counsel or barrister : 3 Stephen's Blackstone,

p. 3,

last edition, 695; and the Judge Ordinary in Drake and another v. Morgan, 27 L. J. said, that all motions which must be made in court should be made by counsel, so that this Court may conform to the practice of the other courts sitting at Westminster.

The most frequent motions which have so far occurred have been made to the Judge Ordinary, in order to obtain his consent to substituting service on the attorney, or on some relative of the respondent, Robotham v. Robotham, 27 L. J. 33; 6 W. R. 328; or to dispense with service on the co-respondent, Tomkin v. Tomkin, 27 L. J. 54, Hook v. Hook, 6 W. R. 868; or inquiries as to how the case should be tried, whether by oral evidence, Pearce v. Pearce, 27 L. J. 51, or even requesting to have it tried upon affidavit, Ling v. Ling and Croker, 27 L. J. 58; Armitage v. Armitage and McDonald, 27 L. J. 50; Potts v. Potts and another, 6 W. R. 860; 27 L. J. 59.

Motions are also made for leave to amend, Wright v. Wright, 1 S. & T. 80, 31 L. T. 370, 27 L. J. 32 for attachment in case the respondent fails or refuses to comply with the order of the court, Oates v. Oates, MSS.: for a rule nisi, 21 & 22 Vict. c. 108, s. 18: and, in fact, for any proceeding necessary or incidental to a trial.

There must generally be three days' notice given, to the opposite party before a motion is made; and

1

NOTICES TO ADMIT OR TO PRODUCE.

39

the time, by the Second Rules and Regulations, or by former rules and regulations made under the provisions of 20 & 21 Vict. c. 85, for bringing in petitions, answers, and pleadings, or for any other proceeding in a cause depending in the Court for Divorce and Matrimonial Causes, shall, in all cases, be exclusive of Sundays.

CHAPTER III.

NOTICES TO ADMIT OR TO PRODUCE.

Since the rules of evidence observed in the Superior Courts of Common Law at Westminster are applicable to and observed (20 & 21 Vict. c. 85, s. 48) in the trial of all questions of fact in the court, it will of necessity occur at times that certain documents, letters, and other papers will be required at the trial, and, consequently, a notice should be given to the opposite party, either to admit or to produce the same according to whose possession they happen to be in.

In such cases the notice must, rule 48, be in writing, signed by the party, or by his or her proctor, solicitor, or attorney; and by rule 32, the petitioner or respondent may call upon the other party, by notice in writing, to admit any documents, saving any just exceptions; and in case of refusal or neglect to admit the same,