by the record of the judicial separation and the adultery aliunde; in one early case his lordship in an obiter dictum stated that having obtained a judicial separation was no bar to afterwards proceeding for a divorce, should evidence of adultery afterwards be adduced.

An idiot is not allowed to give evidence, Coke Litt. 67, Gilbert on Ev. 144; but a lunatic during a lucid interval may; but, when tendered as a witness, it is for the judge to examine and ascertain whether he is of competent understanding to give evidence, and is aware of the nature and obligation of an oath; and if satisfied that he is, the judge should allow him to be sworn and examined: Reg. v. Hill, 2 Den. C. C. 255. A deaf and dumb person is not incompetent, for he may be examined through the medium of a sworn interpreter, who understands his signs. A dumb man, not deaf, is sworn in the usual way, and there the interpreter is sworn to interpret his signs, 1 Phillips' Evidence, 7. An infant may be a witness, if such infant appear to understand sufficiently the nature and moral obligation of an oath R. v. Williams, 7 C. & P. 320.

:

• When a witness is out of the jurisdiction of the court, or where, by reason of his or her illness or from other circumstances, the Court shall not think fit to enforce the attendance of the witness in open court, it shall be awful for the Court to order a commission to issue for the examination

of such witness on oath, upon interrogatories or otherwise; or if the witness be within the jurisdiction of the court, to order the examination of such witness on oath, upon interrogatories or otherwise, before any officer of the said court, or other person to be named for the purpose, 20 & 21 Vict. c. 85, s. 47. And in accordance with this section of the Act there have been many commissions granted on motions in open court for the purpose of obtaining evidence from witnesses abroad, or from those just about to go abroad, &c. To obtain one, however, an affidavit or affidavits will be required.

CHAPTER IV.

DAMAGES.

Although the 20 & 21 Vict. c. 85, s. 59, has apparently put an end to the action of crim. con. hitherto preliminary to obtaining a parliamentary divorce, it has still left the aggrieved husband a similar claim upon the adulterer; for by sect. 33, any husband may, either in a petition for a 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 alleged adulterer and the wife, unless the court shall dispense with such service, or direct some other service to be substituted; and the claim made by every such petition shall be heard and tried on the same principles, in the same manner, and subject to the same or the like rules and regulations as those by which actions for crim. con. were tried and decided in courts of common law; and the damages to be recovered on any such petition shall in all cases be ascertained by the verdict of a jury, although the respondents, or either of them, may not appear; and after the verdict has been given, the Court has 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.

This section was not much resorted to at first; however, there have latterly been several causes in which damages have been claimed and decreed, Reed v. Reed and Davis, MSS.; where the corespondent was ordered to pay the costs of the cause and 20%. (the co-respondent only being a railway porter), which the court ordered to be invested for the benefit of the petitioner's child : In Keats v. Keats and Montezuma, 5 Jur. 179, 1000l. was decreed to be appropriated in various ways.

It will be seen that although the action of

crim. con. was abolished by sec. 29, yet nevertheless sec. 33 leaves a similar remedy or revenge; for by it, "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.'

As yet this latter clause does not appear to have been acted upon.

MARRIAGE SETTLEMENTS.

In any case in which the court shall pronounce a sentence of divorce or judicial separation for adultery of the wife, if it shall be made to appear to the Court that the wife is entitled to any property either in possession or reversion, it shall be lawful for the Court, if it shall think proper, to order such settlement as it shall think reasonable to be made of such property, or any part thereof, for the benefit of the innocent party, and of the children of the marriage, or either or any of them, 20 & 21 Vict. c. 85, s. 45. By this section it would almost appear that there is the discretion invested in the Court to interfere with marriage or other settlements of the wife's, if she be proved guilty of adultery, and divorced in consequence of it; however, the Court, in Tourle v. Tourle, 27 L. J. 73, note, refused to make any

order as to the marriage settlements, Lord Campbell, C. J. stating that they had considered the point, and were of opinion that they had no power to alter marriage settlements. In Norris and Norris v. Gyles, 27 L. J. 73 a similar opinion was expressed. In Keats v. Keats and Montezuma, Lord Chelmsford held that the marriage settlement must remain untouched, for the Court merely provides for the wife during her life, and intimated that if the wife chose to give up certain disposing power vested in her, the husband must allow her a certain income for her life, et quam diu casta vixerit.

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. It will be seen from the last section that the Court has the power on any decree of divorce to order the husband to settle such a sum as may enable his erring wife to live; but from the judgment in Keats v. Keats and Montezuma, the inference is that it will only last quam diu casta vixerit.