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application made to me this day on behalf of the said petitioner, it appears to my satisfaction that the said A. B. is likely to convey or assign his property (or as the case may be,) I do therefore hereby order and direct the said A. B. &c. [as in restraining clause of form (Q) ).
J. C. A., J. S. C. - Solicitor to Petitioner. N. B.-If the order be made at the same time as the declaratory order, the form nay be altered as follows [In title the same as above]:Whereas after the hearing of the evidence given before me (or, returned to me, if taken by a County Court Judge,) on the allegations of the petitions in this matter, I have made a declaratory order herein, and it therefore seems right that the said A. B. should be restrained from dealing or intermeddling with his estate, I do therefore hereby order and direct, &c. [the same as before).
THE COURT OF DIVORCE AND MATRIMONIAL CAUSES. Section.
Section 1 Jurisdiction.
11 In case of neglect or refusal to 2 Force of Order, &c., of Court of appear, Court may proceed to Governor in Council.
hearing.. 3 Practice and proceedings. 12 Court may issue Writs of Sub4 Appointment of Registrar ; Bar pæna, &c.; effect of such Writ.
risters of Supreme Court entitled 13 Examination of witnesses.
14 Decrees or orders of the Court 5 Terms of Court.
may be enforced by Execution. 6 Citations, Writs, &c., how tested. 15 Power of Court to make rules 7 Citations how served out of the and regulate fees. Province.
16 All decrees or orders, or sealed 8 Affidavits to be used in said copies thereof, to be evidence.
Court, before whom sworn. 17 Right of appeal. 9 Consequences of refusal to obey 18 Forms to have the same force as citation or process.
if incorporated in the Chapter. 10 How party refusing, &c., absolved 19 Causes for divorce ; effect of, in from contempt.
case of adultery.
Schedule of Forms. 1. Alljurisdiction which, on the ninth day of April in the year of our Lord one thousand eight hundred and sixty, was vested in or exercisable by the Court of Governor in Coun. cil, under the authority of an Act made and passed in the thirty first year of the Reign of His late Majesty King George the Third, intituled An Act for regulating Marriage and Divorce, and for preventing and punishing incest, adultery, and fornication; in respect of suits, controversies and questions concerning marriage and contracts of marriage and divorce, as well from the bond of matrimony as divorce and separation from bed and board, and alimony, shall continue to belong to and to
be vested in the Court of Record called “The Court of Divorce and Matrimonial Causes,” constituted and established in and by an Act of Assembly made and passed in the twenty third year of Her present Majesty's Reign, intituled An Act to amend the Law relating to Divorce and Matrimonial Causes.
2. All orders, judgments and decrees of the said Court of Governor in Council heretofore made, may be enforced or otherwise dealt with by "The Court of Divorce and Matrimonial Causes,” in the same manner and to the same extent as if they had originally been made by such Court.
3. The practice and proceedings of 'The Court of Divorce and Matrimonial Causes' shall be conformable, as near as may be, to the practice of the Ecclesiastical Court in England prior to an Act of Parliament made and passed in the year one thousand eight hundred and fifty seven, intituled An Act to amend the Law relating to Divorce and Matrimonial Causes in England, subject however to the provisions of this Chapter, and such rules and orders as are now in force in the said Court, and consistent with the provisions of this Chapter, whether such rules and orders were made by the said Court or by the Court of Governor and Council.
4. There shall be a Registrar of said Court to be appointed by the Governor in Council, and all Barristers and Attorneys entitled to practice in the Supreme Court of this Province shall be entitled to practice in the said Court of Divorce and Matrimonial Causes, as heretofore.
5. The Terms of the said Court shall commence on the fourth Tuesday in February, June and October in each year, and shall continue for the space of ten days; provided that the Judge of the said Court shall have power to continue the sittings of the said Court beyond the end of the said Terms respectively, if the causes pending in the said Court shall require it.
6. All citations, writs or processes issued out of the said Court shall be tested in the name of the Judge of the Court, and on the day of issuing the same.
7. Citations issued out of the said Court, directed either to the party against whom issued, or to the Sheriff of any County in this Province, may be served out of this Province personally in the same manner and with the like effect as if
such service was made within this Province, and all proccedings shall be had and taken thereon in the same manner and with the same effect as in the case of service within this Province.
8. Affidavits to be read or used in the said Court may be made, sworn and taken before any person within or without this Province authorized to take affidavits to be read in the Supreme Court.
9. In all cases cognizable in the said Court of Divorce and Matrimonial causes, when any person having been duly cited to appear and answer,or required to comply with any order or decree of the said Court, shall neglect or refuse to appear or to obey such order or decree, or when any person shall commit a contempt in the face of such Court, it shall be lawful for the Court to pronounce such person in contempt, and thereupon a Writ de contumace capiendo (A) shall issue out of the said Court, directed to the Sheriff of the County in which such person may be, returnable on the first day of the next Term of the said Court, or if issued in Term, returnable on any day in such Term as the Court may direct; and all Sheriffs, Gaolers and other officers shall execute such writ by taking and detaining the body of the person against whom the writ shall issue.
10. Upon the due appearance and answer of any party so cited, or the obedience to any such order or decree, or the due submission ofany party so having committed a contempt in the face of the Court, the said Court may, upon such terms as it shall deem just, pronounce such party absolved from any such contempt, and shall forthwith make an order for discharging such party out of custody; and the Sheriff or other officer in whose custody suck person may be, shall on production of such order, and on payment of the costs incurred by such contempt, forth with discharge him.
11. When any person having been duly cited to appear in any cause brought or hereafter to be brought in the said Court, shall neglect or refuse to appear or answer within the time directed by the rules and practice of the said Court, it shall be lawful for the said Court to proceed with the hearing and trial of the said cause ex parte, without issuing the writ de contumace capiendo, and to pronounce such judgment and decree therein as the circumstances of the case may require,
in the same manner as the said Court might do if the party cited had appeared or answered.
12. The Court may issue Writs of Subpæna (B) and Subpæna duces tecum (C), commanding the attendance of witnesses or the production of papers; and any person served with any such writ shall be bound to attend and to be sworn and give evidence, and to produce papers in obedience thereto, in the same manner as if it had been a Writ of Subpæna or Subpæna duces tecum issued out of the Supreme Court in a cause pending therein.
13. The witnesses in all suits before the Court, when their attendance can be had, shall be sworn and examined orally: provided that when a witness is out of the jurisdiction of the Court, or when by reason of his age or illness, or from other circumstances, the Court shall not think fit to enforce his attendance, it shall be lawful for the Court to order a Commission to issue out of the Province, or make an order for the examination of any witness within the Province, in the same manner and to the like effect as the Supreme Court or a Judge thereof may do under the like circumstances, in a cause pending therein.
14. The Court shall have the power to enforce the performance of its decree or orders, by Execution (D) against the goods and chattels, lands and tenements, of the party liable thereto; and such executions shall have the same priority and effect as executions issued upon judgments in the Su preme Court.
15. The Court shall have power to make rules and regulations concerning the practice and procedure, and the forms to be used under this Chapter, and to regulate the fees payable on all proceedings therein, as may be considered necessary, and to alter or revoke the same or any of them as may from time to time be considered necessary.
16. All decrees and orders, or copies of decrees and orders of the said Court, sealed with the Seal thereof, shall be received in evidence in all Courts.
17. Either party dissatisfied with any decision of the Court in any suit or proceeding, may under such rules and regulations as the Supreme Court may have already made or may hereafter make, appeal therefrom to the Supreme Court, from whose decision an appeal may be made to Her Majesty
in Her Majesty's Privy Council, under such rules and regulations as Her Majesty may prescribe, or to any other Court of Appeal having jurisdiction.
18. The forms in the Schedule to this Chapter, or forms to the like effect, shall be deemed of the same force as if incorporated in the Sections to which they refer.
19. The following Sections of an Act made and passed in the thirty first year of the Reign of His late Majesty George the Third, intituled An Act for regulating Marriage and Divorce, and for preventing and punishing incest, adultery and fornication, are unrepealed, that is to say, Section nine, in the following words :--" The causes for divorce from the bond of matrimony and of dissolving and annulling marriage are and shall be, frigidity or impotence, adultery and consanguinity within the degrees prohibited in and by an Act of Parliament made in the thirty second year of the Reign of King Henry the Eighth, intituled An Act for Marriages to stand, notwithstanding pre-contracts, and no other causes whatsoever :" Section ten, in the following words :-"Provided always, that in case of a sentence or divorce from the bond of matrimony or marriage for the cause of adultery, the issue of such marriage shall not in any case be bastardized, or in any way prejudiced or affected with any disability thereby ; prorided also, that the wife in such case shall not be thereby barred of her dower, or the husband be thereby deprived of any tenancy by the courtesy of England, unless it shall be so expressly adjudged and determined in and by such sentence of divorce.”
SCHEDULE OF FORMS.
Writ de contumace capiendo. (L.S.) VICTORIA, by the Grace of God, &c. To the Sheriff of
Greeting : Whereas is contumacious and contemns the jurisdiction and authority of the Court of Divorce and Matrimonial Causes (here state the non-appearance or olher contempt] ; You are hereby commanded to attach the said
by his body, until he shall make satisfaction for the said contempt; and how you shall execute this writ, notify to the said Court, on the day of next, and have