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RESTITUTION OF CONJUGAL RIGHTS.
1. Husband and wife living separate without cause.
1. When a husband and wife become separated without any just cause, either party may by suit compel the other to return to the conjugal home.
2. Proceedings for restitution of conjugal rights, like all others, are to be commenced by a petition, stating, amongst other things, the marriage of the parties, and their undue separation; and the Court on being satisfied of the truth of the allegations therein contained, and that there is no legal ground why the same should not be granted, may decree such restitution of conjugal rights accordingly.
3. The statute leaves us in the same uncertainty as to what are the bars to the remedy in this proceeding, as in cases of judicial separation. The Ecclesiastical Courts allowed pleas of adultery or cruelty. It is perfectly in the discretion of the Court to allow others, but whether they will do so is yet to be decided.
4. The decree of the Court will simply compel the parties to live together in a house fixed by the husband.
i Sec. 17.
1. The Court, how constituted.
1. The Lord Chancellor, the Lord Chief Justice of England, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, the three Senior Puisne Judges of the Common Law Courts, and the Judge of the New Probate Court, who is Judge-Ordinary of the Court, are the high functionaries of whom it requires three or more to form a full Court.
2. The Judge-Ordinary is empowered to dispose alone of all matrimonial causes, except petitions for divorce, or for annulling a marriage, applications for the new trial of questions or issues before a jury, bills of exceptions, special verdicts, and special cases.
3. Petitions for dissolution or annulling of marriage and applications for new trials or issues before a jury
must be heard by not less than three Judges, of whom the Judge-Ordinary shall be one.'
4. Should the Judge-Ordinary be temporarily absent, the Lord Chancellor may authorise the Master of the Rolls, the Judge of the Admiralty Court, either of the Lord Justices, any Vice Chancellor, or any common Law Judge, to act in his place. 2
5. It would be well that the very important functions of the new Court could be discharged by those distinguished Judges. But they cannot. The appointment of new Judges, whose sole duties it will be to attend to the overflowing business of the Court, is called for, and will, it is believed, take place immediately.
6. The mode of taking evidence presented by the statute is, that the witnesses in all proceedings before the Court, where their attendance can be had, shall be sworn and examined orally. The parties, however, shall be at liberty to verify their respective cases in whole or in part by affidavit, but the deponent, in every such affidavit, must, on the application of the opposite party, or by the direction of the Court, be subject to be cross-examined by, or on behalf of the opposite party orally in open Court.
7. The attendance of witnesses residing in any part of Great Britain or Ireland, may be enforced by the service of writs of subpoena or subpoena duces tecum upon them. Every such person so served shall be bound to attend, and to be sworn, and give evidence in obedi.. ence to such writ.3
8. Where witnesses are out of the jurisdiction of the Court, or where, by reason of illness or from any other circumstances, the Court shall not think fit to enforce their attendance in open Court, the Court may order a commission for the examination of such witness on interrogatories or otherwise. 4
9. In conclusion, we may remark that we have purposely avoided making any reference to several provisions of the recent Act, which appear wholly in
applicable to Ireland, or unimportant to the general reader; such as those relating to the power and duties of Judges of Assize, Police Magistrates, and Justices of the Peace, in England ; to the formation and management of a fee-fund, the transmission of Records from the Ecclesiastical Court, and many others of a similar nature. We have only now to hope that nothing of importance has been omitted.
1 These several provisions will be found in the statute. See Appendix