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which she has acquired or may acquire by her own

by her own industry after such desertion, and property which she has succeeded to or may succeed to or acquire right to after such desertion, against her husband or his creditors, or any person claiming in or through his right; and the Lord Ordinary shall appoint such petition which she may to be intimated in the Minute-Book of the Court of Session, and to be

industry, or

succeed to.

Husband or

creditor may apply by petition for recal of order.

Interlocutors may be reviewed. How

long order of

protection to continue

served upon the husband; and the husband, or any creditor of the husband, or any other person claiming in or through his right, shall be entitled to lodge answers to the said petition, and if the husband be furth of Scotland, the petition shall be executed edictally against him on an induciæ of twenty-one days; and upon considering such petition the Lord Ordinary shall require evidence of such desertion, and on being satisfied thereof pronounce an interlocutor giving to the wife protection of her property as aforesaid against the husband and all creditors or persons claiming under or through him; and if answers be lodged to the said petition, the Lord Ordinary may, on considering the same, and, if he consider it necessary, after hearing parties, allow a proof to them of their respective averments, which proof he shall take himself, and either write the evidence with his own hand, in which case it shall be read over to the witness by the judge, and signed by the witness, if he can write, or the Lord Ordinary shall record the evidence by dictating it to a clerk, in which case it shall, when taken down, be read over and signed as above; or the Lord Ordinary shall cause the evidence to be taken down and recorded by a writer, skilled in shorthand writing, in manner after-mentioned, and it shall be competent to the Lord Ordinary, in special cause shown, instead of taking such proof, to grant a commission to take said proof elsewhere than in Edinburgh, in which case he may pronounce an interlocutor setting forth such special cause, and granting commission to take such proof, and if satisfied after proof of the fact of such desertion, and that the same was without reasonable cause, he shall pronounce an interlocutor giving to the wife protection as aforesaid, and he shall appoint intimation of the said interlocutor having been pronounced to be made in one or more newspapers published within the county within which the wife is resident, or in such other newspapers as the Lord Ordinary may appoint.

2. It shall be lawful for the husband, or any creditor or other person claiming in or through his right, if such creditor, husband, or other person have not lodged answers as aforesaid, to apply by petition to the Lord Ordinary by whom such order was made for the recal thereof; and the Lord Ordinary shall appoint such petition to be answered by the wife, and thereafter dispose of the application as he shall think just; but such recal shall not affect any right or interest onerously and bona fide acquired by any third party from the wife before said recal; and the Lord Ordinary shall direct that publication of his interlocutor be made in manner herein before provided.

3. All interlocutors of the said Lord Ordinary may be brought under review of either Division of the Court of Session, by lodging and boxing within twenty-one days after the pronouncing of such interlocutors, if in session; and if the said twenty-one days shall expire during vaca

CONJUGAL RIGHTS ACT.

465

adherence

subsists.

tion, by lodging in the Bill Chamber a reclaiming note and boxing the operative. same at the first box day after the expiry of the said twenty-one days: No action of Provided always, that, notwithstanding such reclaiming note, the competent interlocutor of the Lord Ordinary granting protection shall take effect while order when intimated as aforesaid, unless the Lord Ordinary, either at the time of the pronouncing thereof or within forty-eight hours thereafter, order that his interlocutor shall not take effect till the advising of the reclaiming note, or such other period as he may think fit; and such order of protection shall, where there has been appearance by the husband, continue operative until such time as the wife shall again cohabit with her husband, or until the Lord Ordinary, upon a petition by the husband, shall be satisfied that he has ceased from his desertion, and cohabits with his wife; and the Lord Ordinary may require him to find security for such period as may be appointed, that he shall continue to cohabit with her; and upon the Lord Ordinary being so satisfied, and security found, if required, he shall recal the order of protection; but such recal shall not affect any right or interest acquired by the wife while the said order subsisted, which right and interest shall remain vested in her, exclusive of her husband's jus mariti and right of administration; nor shall it affect any right or interest acquired by a third party during such period, or any third party through or from her, while the said order subsisted; and until such order be recalled it shall not be competent for the husband to institute an action of adherence against his wife; and the Lord Ordinary shall direct that publication of its recal be made in manner herein before provided.

to her as if

4. After an interlocutor of protection is pronounced and duly After interintimated, the property of the wife as aforesaid shall belong to her as locutor of if she were unmarried: Provided always, that such protection shall protection is pronounced, not extend to property acquired by the wife of which the husband or property of his assignee or disponee has before the date of presenting said wife to belong petition obtained full and complete lawful possession, nor shall such unmarried. protection affect the right of any creditor of the husband over property which he has before the date thereof duly attached by arrestment, followed by a decree of forthcoming, or which such creditor has before the said date duly poinded, and of which he has carried through and reported a sale.

tection to have effect

5. If any such order of protection be made and intimated, it shall Order of prohave the effect of a decree of separation a mensa et thoro in regard to the property, rights, and obligations of the husband and of the wife, of decree of and in regard to the wife's capacity to sue and be sued. separation.

6. After a decree of separation a mensa et thoro obtained at the In case of instance of the wife, all property which she may acquire, or which separation the property may come to or devolve upon her, shall be held and considered as of the wife to property belonging to her, in reference to which the jus mariti and belong to her, husband's right of administration are excluded, and such property the jus mariti exclusively of may be disposed of by her in all respects as if she were unmarried, and right of ad

ministration; and on her decease the same shall, in case she shall die intestate, pass also for to her heirs and representatives, in like manner as if her husband had purposes of contract and been then dead; provided that if any such wife should again cohabit suing. with her husband all such property as she may be entitled to when such cohabitation shall take place shall be held to her separate use, and the jus mariti and right of administration of her husband shall be excluded in reference thereto, subject, however, to any agreement in writing made between herself and her husband; and the wife shall, while so separate, be capable of entering into obligations, and be liable for wrongs and injuries, and be capable of suing and being sued, as if she were not married; and her husband shall not be liable in respect of any obligation or contract she may have entered into, or for any wrongful act or omission by her, or for any costs she may incur as pursuer or defender of any action, after the date of such decree of separation and during the subsistence thereof; provided that where upon any such separation aliment has been decreed or ordered to be paid to the wife and the same shall not be duly paid by the husband, he shall be liable for necessaries supplied for her use.

In action of divorce

adulterer to be

7. In every action of divorce for adultery at the instance of the husband, it shall be competent to cite, either at the commencement or co-defender. during the dependence thereof, as a co-defender along with the wife, the person with whom she is alleged to have committed adultery ; and it shall be lawful for the Court in such action to decern against the person with whom the wife is proved to have committed adultery for the payment of whole or any part of the expenses of process, provided he has been cited as aforesaid, and the same shall be taxed as between agent and client: Provided always, that it shall be competent to examine the person with whom the wife is said to have committed adultery as a witness in the cause, notwithstanding he is called as a co-defender in the action, and in the power of the Court, on cause shown, to dismiss such action as regards such co-defender, if in their opinion such a course is conducive to the justice of the case.

Lord Advocate may enter appearance in actions for nullity of

marriage and divorce.

In action for separation Court may

8. It shall be competent to the Lord Advocate to enter appearance as a party in any action of declarator of nullity of marriage or of divorce; and it shall be competent to him to lead such proof and maintain such pleas as he may consider warranted by the circumstances of the case; and the Court shall, whenever they consider it necessary for the proper disposal of any action of declarator of nullity of marriage or of divorce, direct that it be laid before the Lord Advocate, in order that he may determine whether he should enter appearance therein; and expenses shall not be claimable by or against the Lord Advocate with reference to such cases.

9. In any action for separation a mensa et thoro or for divorce the Court may from time to time make such interim orders, and may, in make interim the final decree, make such provision as to it shall seem just and proper with respect to the custody, maintenance, and education of any children. pupil children of the marriage to which such action relates.

orders with

respect to

CONJUGAL RIGHTS ACT.

467

10. In every consistorial action the summons shall be served upon In every the defender personally, when he is not resident within Scotland: consistorial action the Provided always, that if it be shown to the satisfaction of the Court summons to be that the defender cannot be found, edictal citation shall be deemed served on sufficient; but in every case where the citation is edictal the pursuer defender personally when shall also serve the summons on the children of the marriage, if any, not within and on one or more of the next-of-kin of the defender, exclusive of Scotland. the children of the marriage, when the said children and next-of-kin are known, and resident within the United Kingdom, and such children and next-of-kin, whether cited or so resident or not, may appear and state defences to the action.1

action of adhe

11. It shall not be necessary, prior to any action for divorce, to Not necessary institute against the defender any action of adherence, nor to charge to institute an the defender to adhere to the pursuer, nor to denounce the defender, rence against nor to apply to the presbytery of the bounds, or any other judicature, defender prior to admonish the defender to adhere.

to action for divorce.

age property.

12. The widow of any person who shall, after the passing of this Terce claimAct, die infeft in property held by burgage tenure shall be entitled to able for burgterce therefrom; and the like proceedings as to service and kenning before the sheriff shall be competent in such a case as are competent with reference to property in respect of which terce might have been claimed prior to the passing of this Act.2

in consistorial

13. The forty-first section of the Act of the first year of His late Lord Ordinary Majesty William the Fourth, chapter sixty-nine, in so far as it to take proofs enacted that "it shall be lawful for His Majesty's Principal Secretary actions. of State for the Home Department to appoint, from time to time, such number of persons, being sheriff's-depute of counties, as he shall think fit, to take proofs in consistorial causes, which duty the persons so appointed shall perform ;" and the second section of the Act of the sixth and seventh years of His late Majesty William the Fourth, chapter forty-one, shall be and the same are hereby repealed; and in place thereof it is hereby enacted, That where proof in consistorial actions shall be allowed, a Diet of Proof shall be appointed, at which the evidence shall be led before the Lord Ordinary, and he shall take himself, and either write down with his own hand the oral evidence, in which case it shall be read over to the witness by the judge in open Court, and shall be signed by the witness, if he can write, or the Lord Ordinary shall record the evidence by dictating it to a clerk, in which case it shall in like manner be read over and signed; or the Lord Ordinary shall cause it to be taken down and recorded in shorthand by a writer skilled in shorthand-writing, to whom the oath de fideli administratione officii shall be administered, and the Lord Ordinary may, if he think fit, dictate to the shorthand-writer the evidence which he is to record; and the said shorthand-writer shall afterwards write out in full the evidence so taken by him; and the 1 Personal service need not be by a messenger-at-arms. Court of Session Act, 1868, § 100.

2 See Conveyancing Act, 1874, § 25.

Payment to certain sheriffs.

Actions of aliment.

notes of the Judge, or the extended notes of such writer, certified by the presiding Judge to be correct, shall be the record of the oral evidence in the cause; and the Lord Ordinary shall take a note of the documents adduced, and any evidence, whether oral or written, tendered and rejected, with the ground of such rejection; and any ruling of the Lord Ordinary in reference to the admission or rejection of evidence may be recalled or altered by the Inner House, under a reclaiming note against the final interlocutor of the Lord Ordinary, disposing of the merits of the cause; and the diet of proof may be adjourned by the Lord Ordinary, if he shall consider it proper and reasonable so to do; but the proofs shall be taken, as far as may be, continuously, and with as little interval as the circumstances or the justice of the case will admit of: Provided always, that it shall be competent to the Lord Ordinary, where any witness or haver is resident beyond the jurisdiction of the Court, or by reason of age, infirmity, or sickness is unable to attend the diet of proof, to grant commission to any person competent to take and report in writing, according to the existing practice, the evidence of such witness or haver.1

14. The Commissioners of Her Majesty's Treasury shall annually pay to each of John Cay, Esquire, Sheriff of the County of Linlithgow; John Tait, Esquire, Sheriff of the Counties of Kinross and Clackmannan; Erskine Daniel Sandford, Esquire, Steward of the Stewartry of Kirkcudbright, and Sheriff of the County of Wigton; Robert Hunter, Esquire, Sheriff of the Counties of Dumbarton and Bute; and Benjamin Robert Bell, Esquire, Sheriff of the Counties of Banff, Elgin, and Nairn, out of monies to be voted by Parliament for that purpose, a sum equal to one-fifth of the total amount which shall be ascertained by the Queen and Lord Treasurer's Remembrancer in Exchequer, to have been paid annually, on an average of the last three years, to the sheriffs-commissary, in respect of proofs taken by them in consistorial causes; but such sum shall only be paid as long as the said persons shall hold the office of sheriff in any county in Scotland, and no longer.

15. Actions of aliment in the Court of Session between husband and wife shall not be considered Inner House causes, but shall be considered and disposed of in like manner as other consistorial causes, except as hereinafter provided as to decrees in absence; and actions of aliment at the instance of other parties shall not be considered Inner House causes, but shall be disposed of by the Lord Ordinary (subject in both cases to reclaiming note in common form against his interlocutors) in the same way as such causes are at present disposed of by the Judges of the Inner House: Provided always, that all actions for aliment shall be deemed summary causes both in the Outer and in the Inner House, and that where no appearance is entered for the defender, decreet shall be pronounced in absence without proof, as in other cases before the Court of Session.

1 It is now competent to grant a commission to take the deposition of a haver although he may be resident in Scotland. Court of Session Act, 1868, § 100.

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