elapse before the petition can be heard. There is no rule requiring that the citation should be returned and filed, except Rule 13:-" After personal service of the citation has been effected, the citation, with the certificate of service indorsed thereon, shall be forthwith returned and filed in the registry." That does not apply to a case where personal service has been dispensed with.

[The JUDGE ORDINARY.-In the registry it has always been considered that they have no seisin of the cause until the citation has been returned. There can be no record unless it appears that a citation has been returned and filed.]

Will your Lordship allow the petition to be set down for hearing, upon the undertaking of the solicitor for the petitioner that the citations shall be returned?

Pigott, Serj. (Dr. Swabey with him) renewed the motion (Jan. 13).-In addition to the hardship of delaying the hearing four months, there is another reason why the petition should be heard before the citation is returned. The only act of adultery which can be proved was committed in a brothel at Liverpool, the evidence of which would be that of persons residing there, and it is very difficult to keep a hold on such persons; they may not be forthcoming four months hence, though we can now ensure their attendance.

[The JUDGE ORDINARY.-I think I ought not to accede to the application. The requiring the citation to be returned and filed is not a mere matter of form. It is necessary in order that evidence may be preserved that the proper steps have been taken. There would be no proof in the registry that a citation had issued unless it were returned. I do not see that the petitioner will be much prejudiced. He has a petition on the file, service of the citations has been dispensed with, and in a short time you can get them returned. With respect to the fresh ground urged to-day, viz., the difficulty of ensuring the presence of the witnesses at the hearing,

Judicial Separation-Desertion for two Years-Offer to return-20 & 21 Vict. c. 85. s. 16.

The 16th section of the 20 & 21 Vict. c. 85, is not retrospective so as to entitle to a judicial separation a spouse who, prior to that act coming into operation, has been deserted for two years and upwards, but the desertion in such a case must continue after the act came into operation. If, therefore, before that date a spouse so deserted has received a bona fide offer to renew cohabitation, the desertion having thereby been put an end to, a suit for a judicial separation cannot be maintained.

A husband in 1833 deserted his wife without cause. They never afterwards lived together. In 1850 the wife rejected an offer made to her by the husband to live with her again :-Held, that the wife was not entilled to a judicial separation on the ground of "desertion without cause for two years and upwards."

This was a petition, by the wife, for judicial separation, on the ground of desertion without cause for two years and upwards. The husband did not appear.

At the hearing (Dec. 4), it was proved that the marriage took place on

the 11th of May 1823, and that there had been issue of it two children, one born in 1824, who died in 1850, and another born in 1825, and still living. The parties resided in Birmingham, the husband being a journeyman bootmaker. Soon after the marriage he behaved very unkindly to the petitioner. He deserted her in 1825, shortly before the birth of the second child, but after an absence of six months returned to her. In 1833 he again deserted her without any cause, since which time they had never lived together, nor had the husband contributed to the support of the petitioner, who had maintained herself by needlework, with some assistance from her friends.

In answer to questions put by the Court, the petitioner stated that in 1850 her husband went to her, and proposed to live with her again, but that she refused to live with him, and that he had never gone to her again.

Dr. Wambey, for the petitioner.-The offence of desertion for two years and upwards having been completed before the proposal of the husband to renew cohabitation, the petitioner is entitled to a judicial separation-Cargill v. Cargill (1).

[The JUDGE ORDINARY.-There is a material distinction between this case and Cargill v. Cargill. There the offer of the husband to renew the cohabitation was not made until after the Divorce Act came into operation, and the wife's right to a judicial separation had accrued.

Here,

the right has once accrued it cannot be taken away by an unaccepted offer to return, though made bona fide. Those authorities, however, throw no light on the present question, the decision of which turns on the construction of the 16th section of the Divorce Act, which, I submit, has a retrospective operation as to the offence of "desertion without cause for two years and upwards," and as to all its legal incidents, one of which is, that when once completed, the right of the spouse deserted to judicial separation cannot be barred by an unaccepted proposal to renew cohabitation. Judicial separations have already been decreed in numerous cases, and it has never been suggested that the act of desertion must take place subsequently to the Divorce Act coming into operation. That shews that the 16th section is retrospective as to the offence in its inception. Why should it not be so construed with respect to the offence when once completed? It is reasonable to suppose that the legislature intended that "desertion without cause for two years and upwards," when once complete, should give a right to judicial separation, of which the deserted spouse should not be deprived by an offer to renew cohabitation, whether made before or after the act came into operation. This view is confirmed by the circumstance, that the 16th section is clearly retrospective with respect to the two other offences, adultery and cruelty, mentioned in it.

Cur. adv. vult.

The JUDGE ORDINARY now delivered

judgment.-This was a petition by the wife for a decree of judicial separation, on the ground of desertion without cause for two years and upwards. The evidence proved that the parties were married in 1823. The husband behaved extremely ill, and left his wife on several occasions. In 1833 he left her for the last time, and they have never lived together since; but eight years ago he went to the petitioner, and proposed that they should live together again, which she refused: the question is, whether she is, under such circumstances, entitled to a decree. The question depends upon the construction to be put upon the 16th section of the 20 & 21 Vict. c. 85, which is as follows:-" A sentence of

judicial separation (which shall have the effect of a divorce à mensá et thoro under the existing law, and such other legal effects as herein mentioned) may be obtained either by the husband or the wife, on the ground of adultery or cruelty or desertion. without cause for two years and upwards." For the wife, it was contended that the husband having deserted her in 1833, and having never offered to return to live with her till 1850, she was not then bound to receive him, and may now proceed for such desertion. If he had not offered to return until after the Act passed, so that when the offer was made the law had given her a right to petition, I think he could not have deprived her of that right by returning or offering to return. But the right to petition for judicial separation on the ground of desertion was first given by that Act. Desertion was not an offence previously known to the ecclesiastical or common law of the land. In that respect it differs from adultery and cruelty, the two other grounds for judicial separation mentioned in the same section. If a husband was guilty of either of those offences, the wife had a remedy in the Ecclesiastical Court, and the jurisdiction of that Court having been transferred to the Court for Divorce, it may take cognizance of those matters. But until this Act passed desertion not being an offence cognizable by the Ecclesiastical Courts, no right to proceed for it could be transferred. Is, then, the clause to have a retrospective operation, so as to make that act an offence now which was not an offence when it was done? So to construe it would give it another effect, which could hardly have been contemplated. At any time after the wife refused to return to cohabitation, the husband might have sued for restitution of conjugal rights, notwithstanding his long absence; but if the statute were to have a retrospective operation, it would take. away a right to that remedy already vested. It may be that in this case the wife would have had another and different defence to such a suit, but that does not alter the argument. It seems to me that as no offence against the wife cognizable by the ecclesiastical law had been committed by desertion before the act passed, and there has been nothing which can be called de

Practice-Evidence-Re-opening Commission to examine Witness as to omission in his Evidence.

A witness, on behalf of the petitioner in a matrimonial suit, being about to leave this country was examined under a commission. On the next day he appeared before the Commissioner, and asked to be allowed to add to his evidence certain material facts which he alleged he had forgotten to state, having been flurried during the examination by the frequent personal observations and interruptions of the respondent, who was then present. This statement as to the misconduct of the respondent was confirmed by the petitioner's solicitor, but not by the Commissioner, though he made an affidavit. The Judge Ordinary, under these circumstances, refused to allow the commission to be re-opened, that the witness might supply the alleged omission in his evidence.

This was a suit of nullity of marriage by reason of fraud, instituted by the father of the wife.

On the 28th of January the petitioner obtained an order, under section 47. of 20 & 21 Vict. c. 85, for a commission to examine John Thomas Smith, who was about to sail to Australia. On the 7th of February Smith was examined at Plymouth, and on the next day he appeared before the Commissioner, and asked to be allowed to make an addition to his evidence of material facts; alleging, that, in consequence of the frequent personal observations and interruptions of the respondent, who was present at his examination, he became so flurried that it had escaped his recollection at the time to state those facts.

An affidavit to this effect was made by Smith. The solicitor to the petitioner also made an affidavit, stating that he was present at the examination; that the conduct of the respondent was as described

by Smith, and that he believed it disturbed his recollection, inasmuch as, some months previously, Smith had stated those facts to him, and that he had endeavoured during the examination to bring them to the recollection of the witness, but was prevented doing so by the solicitor for the respondent objecting to his putting leading questions; that it would not be safe for the petitioner to proceed to trial without the evidence of Smith as to these facts. The Commissioner also made an affidavit, stating that, to the best of his belief, the statement of Smith as to his having omitted to mention those facts was made spontaneously.

W. Brandt now moved the Court to order that the commission should be reopened, to enable the witness Smith to supply the omission in his evidence. He contended that, though the application was one of an unusual character, the Court had a discretionary power to grant it, and should do so under the circumstances, the affidavits shewing that the facts omitted by Smith were material, and that his omission to state them was caused by the misconduct of the respondent.

Aspland, contrà, contended that there was no precedent in the courts of common law of a commission being reopened on such grounds; and that though the Court had power to make the order, it would be very dangerous to do so, as the facts omitted were most material to the case.

The JUDGE ORDINARY.-Undoubtedly, it is in the discretion of the Court to reopen the commission and allow the witness to be examined again, and I should do so if I were satisfied that the interests of justice required it. It would, however, in my opinion, be so dangerous to grant this application, which is one of an unprecedented character, that I must reject it. To take a case which most nearly resembles this: suppose that a witness had been examined, cross-examined and re-examined in court, and then dismissed, and the Court were to be asked to allow him to be recalled that he might add something to his evidence, on the ground that he had been flurried, and had in consequence forgotten to make the statement. In such a case the Court itself would be able to judge as to the proNEW SERIES, XXVIII.-PROB. AND M.

priety of doing so-it might be able to say whether the manner in which the witness gave his evidence was such as to make it likely that he might have made an omission in giving his evidence. Even in that case I should not look upon the application with much favour, for I have always been very sparing of allowing a witness to be recalled, and whenever it appeared likely that the object of making the application was to meet the stress of the case, have always refused to accede to it. This application presents a still more unfavourable aspect. In the first place, it is an indulgence that the witness has been allowed to be examined before the Commissioner, instead of in open court, and on that ground I should feel some reluctance in granting the application. Further, it appears that the witness is about to leave the country, and would therefore have less to apprehend from the consequences of making a false statement -the Court would therefore have only the religious sanction of the oath. But the case does not rest there; for not only was the witness examined, cross-examined and re-examined, but his evidence was read over to him, and then deliberately signed by him. It can hardly be possible, if the statement of the witness be correct, that he should not then have discovered that he had omitted something of importance, and, if so, surely he would then have supplied it. The Commissioner has made an affidavit, and, undoubtedly, if he had stated that the respondent had by his misconduct during the examination disturbed the witness, I should have thought it was not the fault of the witness, but of the respondent, and would have allowed him to be examined again; but he does not state that, and I think it would be extremely dangerous, on the affidavits before me, to allow a second examination of the witness. If the petitioner thinks his evidence is of so much importance, let him get the witness to delay his departure to Australia, and let his evidence be given in open court.

Ꮐ

Motion rejected.

Will made by Soldier in actual Military Service-Practice-Rules for Principal Registry in Non-Contentious Business, r. 59.

Rule 59. of the Rules for the Principal Registry in Non-Contentious Business, which directs that the Registrars are not to allow probate of the will, or administration with the will annexed, of any obviously illiterate person to issue, unless they have previously satisfied themselves that the said will was read over to the deceased before the execution, or that the deceased had at such time knowledge of its contents, applies to a will made by a soldier in actual military service and executed by mark.

William Hackett, late of Delhi, in the East Indies, a colour-sergeant in the 1st Battalion of the 60th Rifles, died, on the 17th of September 1857, at Delhi, of wounds received during the siege of that place, having whilst in actual military service made his will, but appointing no

executor.

The will, which had been transmitted to this country through the War Office, had been executed by the testator affixing his mark. Subscribed were the names of two attesting witnesses who, it was supposed, if alive, were in India; but no certain information about them had been obtained.

In accordance with Rule 59. (1) of the Rules for the Principal Registry in Noncontentious Business, administration with the will annexed was refused by the Registrar, for want of an affidavit to the effect that the will was read over to the testator before its execution, or that he had knowledge of its contents. The only property of the deceased was a sum of 71. 18s. 9d. payable to the deceased by the War Office.

Application was made (Nov. 3) in

(1) Rule 59.-"The registrars are not to allow probate of the will or administration with the will annexed, of any blind person, or of any obviously illiterate person to issue, unless they have previously satisfied themselves that the said will was read over to the deceased before its execution, or that the deceased had at such time knowledge of its contents."

chambers to Sir C. Cresswell to decree letters of administration, with the said will annexed, to be granted to Margaret Hackett, spinster, the natural and lawful sister of the deceased, by the half-blood, and the residuary legatee named in the will, without the affidavit usually required by Rule 59. 59. Sir C. Cresswell then suggested that application should be made at the War Office, in order to ascertain whether any letter or document had been transmitted to this country with the said will, which might explain the circumstances attending its execution; and added, that if any such information could be obtained the application to him might be renewed.

Inquiry was accordingly made, but no information of the nature suggested could be obtained; but it was found that the two attesting witnesses were then, according to regimental returns, in India.

Dr. Wambey now moved the Court to decree letters of administration to be granted to Margaret Hackett, or to direct that the will should be delivered out of the registry, in order that it might be sent to India for the purpose of obtaining the affidavits of the attesting witnesses.The inquiries at the War Office having failed in eliciting any information as to the execution of the will, it will be a great hardship, under the circumstances, to require a strict compliance with Rule 59, as it will entail the delay and expense of sending to India. The spirit of legislation for centuries has been to exempt wills made by soldiers in actual service from the formalities required in the case of other wills.

SIR C. CRESSWELL.-It may be that hardship may occasionally result from adhering strictly to the Rules, but I have no authority to dispense with them. Rule 59, which is in general terms, applies to wills made by soldiers in actual military service as well as to wills made by other persons. The testator appears, from the circumstance of his having executed it as a marksman, to be an "illiterate" person, and, therefore, in compliance with that Rule, I must be satisfied that he had at the time of its execution knowledge of its contents. If in any way I am satisfied of that fact, I will decree administration as prayed. It is