reasonable delay of the petitioner in presenting or prosecuting his petition; (E.) The cruelty of the petitioner to the respondent; (F.) The desertion or wilful separation without reasonable excuse of the petitioner from the respondent, prior to the misconduct complained of; (G.) The wilful neglect or misconduct of the petitioner, which has conduced to the respondent's adultery; and (H.) The adultery of the petitioner (n).

(D.) By "unreasonable delay" is meant a delay of two years after the discovery of the existence of the fact on which the divorce is claimed; and unless a satisfactory explanation can be given of it, the petitioner is not entitled to a divorce (o). Want of means is, however, considered a satisfactory explanation (p).

(E.) By "cruelty" is meant such conduct as results in bodily hurt or injury to health, or a reasonable apprehension of one or other of these (q). The principle on which the court exercises its discretion in favour of, or adversely to, a petitioner who is found guilty of cruelty towards the respondent, is to ask itself, whether such cruelty has or has not been the cause of the misconduct complained of in the respondent (r); but the court is not absolutely limited by the general rule (s).

(F.) As regards "desertion," when pleaded as a bar to divorce, it is not necessary that the desertion should have continued for the space of two years, or for any specific period (t); the act relied on as desertion must, however, in all cases have been done in opposition to the wishes of the person who alleges it (u).

(G.) With regard to the "wilful neglect or misconduct " of the petitioner, the principle on which the court acts is, that it must directly conduce to the adultery complained of ; for many circumstances are conceivable which may indirectly conduce to that, but these would be insufficient (a).

And (H.) With regard to the adultery of the petitioner, the court will only overlook his misconduct so as to grant him a divorce in three classes of cases :-First, where there has been a mistake of law (y); Secondly, where there has been a mistake of fact (z); and Thirdly, under special circumstances (a).

In all petitions for divorce, before the court proceeds to grant the relief a petitioner seeks, it must be satisfied, that he is domiciled within the jurisdiction of the court,i.e., that he has in England a fixed permanent home, and one to which, when absent from it, he intends to return. For the court is a court for England only, not a court for the United Kingdom or Great Britain; and, for the purposes of jurisdiction, Ireland and Scotland are deemed to be foreign countries equally with France or Spain (b). So, likewise, the Channel Islands (c) and the Isle of Man (d) are not within the jurisdiction.

Where the attendance of the witnesses can be procured, they are examined viva voce in open court at the time the petition is heard; though, in certain cases, and subject to the opportunity being given for the cross-examination and re-examination of the deponent in open court, the case of either party may be verified by affidavit. And,

(x) Badcock v. Badcock (1858), 1 Sw. & Tr. 189; Symons v. Symons, [1897] P. 167; Burdon v. Burdon, [1901] P. 52.

(y) Noble v. Noble (1869), L. R. 1 P. & D. 691; Moore v. Moore, [1892] P. 382.

(z) Joseph v. Joseph and Wentzell (1865), 34 L. J. P. D. & A. 96. (a) Morgan v. Morgan and

Porter (1869), L. R. 1. P. & D. 644.

(b) Yelverton v. Yelverton (1859), 1 Sw. & Tr. 574; Manning v. Manning (1871), L. R. 2 P. & D. 223; Le Mesurier v. Le Mesurier, [1895] A. C. 517.

(c) 4 Inst. 286.

(d) Darison v. Farmer (1851), 20 L. J. Ex. 177.

under certain circumstances, the evidence of any particular witness may be taken under a commission, and such evidence made admissible at the trial (e).

The court has power to make orders on a husband for the payment of alimony or maintenance to the wife; and a wife who is desirous of obtaining such an order must file a petition for the purpose. If the wife is the petitioner in the cause, the petition for alimony must not be presented before the citation has been duly served upon the respondent; if, however, she is respondent in the cause, she may file it so soon as she has entered an appearance (ƒ). The husband may then file an answer upon oath, setting out what his means are; and the matter is then dealt with by the registrar of the court. If a wife has means of support independently of her husband, she is not entitled to an allotment of alimony; and this, even though that support is derived from the co-respondent (g). amount allotted is discretionary, the circumstances of each case being considered; but generally one-fifth of the joint income is allotted as alimony pendente lite, and one-third for permanent alimony.

The

With reference to the mode of trial, the registrar will, on due application, as soon as the pleadings are concluded, direct whether the action shall be tried by a jury or before the court itself, and whether by oral evidence or by affidavit (h); but, in cases of divorce, the trial must be in open court (i), and either party may insist on a jury.

When an issue is to be tried either by a special or by a common jury, the record is settled by the registrar, and the case set down for trial by the petitioner; or, in his

(e) Rules 51-55.

(f) Rules 81–90.

(g) Holtv. Holt and Davis (1868),

L. R. 1 P. & D. 610.

(i) C. v. C. (1869), L. R. 1 P. & D. 640. As to the powers to hear certain cases in camerû, see D. v. D., [1903] P. 144.

(h) Rule 40.

default, this step may be taken by the respondent (k). And the trial takes place, in general, like the trial by a jury of an issue of fact in an ordinary action.

Any motion for a rehearing of a cause which has been heard before a judge without a jury, must be made to a Divisional Court of the Probate Divorce and Admiralty Division (1).

In other cases, an appeal from the decree, or a motion for a new trial, lies to the Court of Appeal (m), there being moreover, an ultimate appeal, in the case of a divorce suit, or for nullity of marriage, to the House of Lords (n).

The King's Proctor, or any other person, wishing to show cause against making absolute a decree nisi for a divorce-which we may remember is always the form of the decree first given on a petition for the dissolution of a marriage (0)-may enter an appearance, together with an affidavit of the facts on which he relies; to which the party in whose favour the decree nisi was given may file affidavits in reply, and the questions raised on such affidavits are argued before the judge, and, if the judge shall so direct, any controverted question of fact may be tried before a jury (p). But if, at the expiration of six calendar months, no person has appeared to oppose the decree, application may then be made to the judge to make such decree absolute (q); and if no application to make the decree absolute be made within a reasonable time, the respondent is entitled to apply to have the decree nisi revoked, and the petition dismissed for want of prosecution (r).

(k) Rule 46.

(1) Smith v. Smith, [1897] P. 293; Watson V. Watson (1903), 19 T. L. R. 567.

(m) Judicature Act, 1881 (44 & 45 Vict. c. 68), s. 9; Westhead v. Westhead (1876), 2 P. D. 1; Gladstone v. Gladstone (1877), ibid. 143.

(n) Matrimonial Causes Act, 1857, s. 56; Judicature Act, 1881, s. 9; Butchart v. Butchart, [1901] A. C. 266.

(0) Ante, vol. 1. p. 328.
(p) Rules 70-76.
(7) Ibid. r. 80.

(r) Ousey v. Ousey (1875), 1 P. D. 56.

And, even during the progress of the cause, any person may give information to the King's Proctor of any matter material to the due decision of the case; and the King's Proctor may thereupon take such steps as the Attorney-General may think necessary or expedient, and may, by leave of the court, intervene in the suit. If he does so, he enters an appearance himself to the petition, and pleads collusion between the parties, on which plea an issue is raised and disposed of between himself and the petitioner. And this course may be taken at any time before the decree has been made absolute (s).

III. Admiralty Action.-This action is regulated by the rules in force in the old Court of Admiralty, modified, however, by the rules laid down under the Judicature Acts with regard to actions generally, some of which apply, in particular, to admiralty actions in rem (t). In an admiralty action in personam, the proceedings do not differ materially from the proceedings in an action in the King's Bench Division. As regards the action in rem, at any time after the writ of summons has issued, a warrant is also to issue, commanding the marshal of the court, or his substitute, or the collector of customs at such and such a port, to arrest the ship in respect of which the claim is made, or her cargo and freight, and to keep the same until further order (u). The warrant, however, must be preceded by an affidavit, setting forth certain particulars prescribed by the Orders, which vary according to the nature of the claim; but, in all cases, such particulars disclose the nature of the claim, and the name and description of the party on whose behalf the action is instituted, and allege that the claim has not been satisfied (r). The defendant may, however, upon giving bail to the action,

(8) Matrimonial Causes Act, 1860, s. 7; Le Sueur v. Le Sueur (1877), 2 P. D. 79.

(1) The former rules of pleading

in the Admiralty Court are wholly superseded (Ord. XIX. r. 1).

(u) Ord. V. r. 16; App. A. part i. No. 17.

(r) Ord. V. r. 16.