can prove its allegations should attend at the House, Allegations of Petition proved. that he may be called to the bar and examined thereto, on oath. Upon this evidence being given satisfactorily to the House, they will make an order that such service, with a service of a copy of this latter order, shall be deemed sufficient. required to Reading, by a And by a Standing Order of the House of Lords (c), Party applying the petitioner for the bill is required to attend at the bar attend on Second on its second reading, that he may be examined as to Standing Order. whether there has been any collusion or consent between the parties, either to the act of adultery, the bill of divorce, or any other matter relating thereto; and as to whether the wife was living apart, or in cohabitation when ance is dispensed the adultery took place. But although the form is still But his attendobserved, such attendance is now uniformly dispensed with. with. plying be abroad. If the petition has been presented by the attorney of a If the party apperson abroad, it will be necessary, on the usual orders being made, to present another petition, stating that the party suing for the divorce is resident abroad, and praying that his attendance may be dispensed with. (For form of such petition, see Appendix XX). Counsel. Previous to the day appointed for the second reading; a Brief for the Brief should be prepared for the Counsel, comprising a short abstract of the Bill, and a statement of the evidence intended to be produced in support of its allegations. On the day appointed for the second reading; after the Second Reading. service of the orders and office copy of the bill has been proved, the bill will be read a second time, and counsel heard in support of it, and witnesses* called, to prove the (c) S. O. H. of L. cxlii. 28 March, 1798. * See the Act 1 Geo. IV. ch. 101-" To enable the ex mination of Witnesses to "be taken in India, in support of Bills of Divorce for Adultery committed there," which provides that the Speaker of either House of Parliament may issue his Warrant for the examination of Witnesses in India, in such cases, and that he do transmit the same (in duplicate) to the Judges in India, who, upon the receipt thereof, must examine the Witnesses, and transmit two certified copies of such Allegations of the bill proved. Witnesses. Bill committed, reported and passed. In the House of Proceedings on the Bill. state of the family, the act of adultery, and other allegations of the preamble. The marriage must be proved by the production of a copy of the Register, with satisfactory evidence as to the identity of the parties. If solemnized abroad, it must be shown, by persons acquainted with the law and customs of the place, to have been performed agreeably to the rites, ceremonies and law of the country. The settlement (if any be recited in the bill) must be proved by the subscribing witness. The definitive sentence made by the Ecclesiastical Court, and delivered in at the Bar with the petition, must now be proved and read. The original record of a judgment given in one of Her Majesty's Courts of Record, with damages, should be produced. This is not required by any Standing Order, but is usually observed as a rule of caution, that it may clearly appear that no collusion between the parties has taken place. All witnesses are sworn at the bar before examination. The bill is then committed to a Committee of the whole, reported by the Chairman to the House with the amendments (if any be made) and ordered to be ingrossed. It is then read a third time and transmitted to the House of Commons. In the House of Commons the ingrossed bill is generally read a first time on the day it is sent from the Lords. When three clear days have elapsed, it will be read a second time, and referred to a Committee of the Whole for the next day seven-night. An order will also be made, "That it be an instruction to the Committee that they do hear examination to the Speaker aforesaid, which shall be deemed, good evidence. This Act further allows the Judges to summon such other Witnesses and to ask such further questions as they may deem necessary, and to name Counsel to attend in opposition to the Bill. Where such Warrants have been issued, the proceedings are not to be discontinued by prorogation or dissolution of Parliament. "counsel and examine witnesses both for and against the "bill." The same observations and rules as to the service of the order and copy of the bill in the Lords, apply to the service here, which must either be personal, or, in the absence of the party, made on the agent, with leave of the House. Counsel will be heard before the Committee* in support of the bill, as in the other House, and the like proofs will be required, except that the parole evidence cannot be given upon oath. It is required by a Standing Order of the House of Commons (d), (which was observed Proof required to be given of not to be the case in the Lords), "That before any Bill of damages having "Divorce for Adultery do pass the House, Evidence a Court of Law. "be given before the Committee to whom the Bill shall "be referred, that an action for damages has been brought "in one of Her Majesty's Courts of Record at Westmin 66 ster, or in any one of Her Majesty's Courts of Record "in Dublin, against the persons supposed to be guilty of "Adultery, and judgment for the plaintiff had thereupon; "or sufficient cause be shown to the said Committee, why "such action was not brought, or such judgment was not "obtained." 3. ESTATE BILLS.t been obtained in Bills of this description almost invariably have their ESTATE BILLS. commencement in the House of Lords, except they ocn- Generally comtain provisions which render it necessary for them to origi- Lords. nate in the Commons.‡ (d) C. J. 13 July, 1837. *It would appear that the House of Commons is becoming more sensible of the evils which must attend the public discussion of questions of this nature in Committees of the whole-for by Resolution of the House, on the 12 February, 1840, a Select Committee, consisting of nine Members, was appointed, "for the "preliminary investigation of Divorce bills, in order to supersede the examination "of witnesses at the Bar." † For the following summary of the proceedings on Estate Bills, I am principally indebted to the valuable work of Mr. Dwarris on the Formation of Statutes. See C. J. v. 26, p. 758, where Lord Ashburnam's Estate Bill-and C. J. v. 29, p. 274, the Duke of Bedford's Estate Bill-sent down from the Lords, were laid mence in the Originate on petition. Contents of petition. Notice required to be made after petition is presented, in a certain case, Petition referred to the Judges for their legal opinion on the mea sure. Proceedings be fore the Judges. Supposing them, however, to commence, as they generally do, in the Upper House, a petition must be presented praying that leave may be given to bring in a Bill for the purpose, which must be signed by all parties concerned in such Bill (a). This petition, it will be seen, is referred to two of the Judges, before whom all parties concerned in the proposed bill must appear. The contents of the petition will necessarily depend on the objects of the measure-but the ground of the application, the intent of the parties, their relative situation, and the state of their claims, must be clearly stated, and the necessity for Parliamentary interference made manifestly to appear. The only notice required in applications for Estate bills, is, in the case of the estate being mortgaged, when the Standing Orders require (b) that as soon as a petition is presented for a. private bill, notice shall be given to any person being a morgagee upon the said estate. Trustees must be made parties to the petition (e). If the bill concern Estates in England (d) the petition is referred to two of the Judges of that country; if it concern lands or heritable subjects in Scotland, it is referred to two of the Judges of the Court of Session in Scotland; and if it relates to Estates in Ireland, it shall be referred (e), if the parties desire it, to two Judges of the Court of Queen's Bench, Common Pleas or Exchequer in that country (f). The general instructions to the judges of either part of the Empire, are precisely the same, but the directions as to receiving consents and other particulars, slightly vary. The judges are forthwith to summon all parties before (a) S. O. H. of L. cxxxiii. clviii. (c) lb. cxlviii. (e) Ib. cxxxi. (b) S. O. H. of L. cl; 29 April, 1799. (d) Ib. xcix.; 16 Feb. 1705. aside, and new bills ordered. See also Mr. Hatsell's remarks on the contents of these bills, 3 vol. pp. 126-7. them who may be concerned in the bill; and, after hearing all the parties and perusing the bill, they are to report to the House of Lords the state of the case, and their opinion thereupon, under their hands; and to sign the bill. come from the The same method is observed with Estate bills sent If the Bill had from the Commons, before their second reading, by send- Commons. ing a copy of the bill signed by the clerk, in every case, to the Judges for their approval, without which the Lords will not entertain the bill. ties concerned, Persons concerned in such bills, residing in Scotland or Consents of parIreland, may give their consent (g) to their passing-in how given. Scotland, before the two Judges of the Court of Sessionand in Ireland, before the two Judges to whom it shall be referred-and the certificates of the said Judges that the persons did, in their presence, give their consents and And proved. sign a bill (which bill, together with the certificates, must be produced) shall be held sufficient evidence of their consent. -except. Witnesses sworn House of Lords. And it is a general instruction to such Scotch and Irish Judges, that they take no notice of any consent unless They must be it has been given personally before them, or made mani- personally made fest to them, by an instrument under the hand of a notary public, that the person cannot attend, and doth consent. In England, the witnesses in support of the petition, at the Bar of the must be sworn at the Bar of the House of Lords, to give true evidence before the judges (h); for which purpose the English Judges send to the House a list of the required witnesses, who are sworn accordingly. A certificate of the administration of this oath, under the hand of the Clerk of the Parliaments, must be produced before the judges. The Irish and Scotch Judges to whom such a Except in Scotpetition is referred, are empowered to swear the witnesses themselves (i). (g) S. O. H. of L. cxxxii, elvii. (h) S. O. H. of L. ciii.; 28 Dec. 1706. land and Ireland. |