THE

JOURNAL OF JURISPRUDENCE.

PROOFS IN THE OUTER HOUSE.

THE Evidence Act of last Session has now been in operation
for six weeks, and a considerable number of proofs have been
taken under its provisions. But as few judgments on evidence have
become known, and as none have come before the Inner House for
review, the remarks which we hazard must be taken for the most
part as tentative or suggestive, rather than as expressions of fully
formed opinion. Upon the whole, the Act has given satisfaction, al-
though it cannot be said that it is yet in thorough working order.
Neither judges, counsel, nor agents are yet familiar with the
course of procedure under it; and some important points of prac-
tice, which arise in almost every trial, not only are still unsettled,
but have given occasion to difference of opinion, and, unless a
remedy is applied, may lead to serious diversity of practice at the
various bars. We refer especially to the time when counsel are
to speak on the proof, and the mode in which documentary evi-
dence is to be recovered and put in. It was very early intimated
by at least one Lord Ordinary, and it was supposed to be the
wish of all, that the debate should follow the conclusion of the
proof without any delay. Whatever the theory on this matter
may be, the practice undoubtedly has been to allow an interval
to elapse. No doubt there is the excuse of novelty, which should
now be wearing off; and it was said that there were exceptional
circumstances in some of the cases, but it can hardly be that all
the score of cases which have been thus tried were of an exceptional
character. There is, we rather think, a growing inclination to
allow a short interval, of one or perhaps two nights, between
the examination of witnesses and the debate on evidence.
VOL. XI. NO. CXXI.—JANUARY 1867.

There

D

is no jury of twelve whom it would be inconvenient to detain or to bring back; and, provided the delay is not so long as to destroy the freshness of the impression left by the oral testimony, it would probably conduce to the ascertainment of the truth and justice of the case if the expected Act of Sederunt allowed an interval, but limited it to four days. The same clause might regulate the number of speeches. It would surely be sufficient that the Lord Ordinary, fresh from the evidence, should hear only senior counsel. The Inner House of course can hardly in more serious cases be expected to dispense with an opening by the juniors on each side.

The question as to recovering documentary evidence is still more important. It has been the general impression, resting not only on the terms of the statute, but also on high authority (notwithstanding one judgment of a Lord Ordinary to the contrary), that it is not competent to examine havers on commission under the Conjugal Rights Act. There can be no doubt as to its competency under the 2d section of the new Act; but we submit that there can be as little doubt, in a large class of cases, as to its inexpediency. Lord Barcaple has intimated his opinion that the Lord Ordinary's time should not be taken up with the examination of havers. Lord Ormidale, on the other hand, questions the propriety of the expensive commission and diligence for examination of havers. We entirely sympathize with Lord Barcaple as to the impropriety of taking up the judge's time with tedious and unimportant examinations of havers; more especially as the examination before him of the ordinary witnesses in causa is already a considerable addition to his labours. But there are two classes of cases to be distinguished. Where any considerable amount of documentary evidence is adduced, it would certainly be a mere waste of public time for the Lord Ordinary to sit, as was the case in Udny v. Udny, for four or five mortal hours, wearily gazing at the counsel for the parties getting up old letters from havers. In such cases, by all means let us have a commissioner. But it may be worth considering whether the expense and trouble of a separate citation and compearance of witnesses and separate attendance of counsel and agents, might not be saved by holding the meeting before the commissioner at nine o'clock on the morning of the trial, or, in particularly heavy cases, on the day before. In another class of cases, however, the examination of havers may be got through in a few minutes, and if, as it

often happens, the havers are also witnesses in the cause, it would be a waste of more than time to have two examinations of the same persons at two different diets. It may be said that the mere service of the specification, or at least the granting of the diligence, is sufficient in many cases to make the documents forthcoming; and that few diligences are actually executed. This is quite true in a number of instances, but in any view there will be a saving of expense in the method suggested. The difficulty is how to distinguish between these cases. The Lord Ordinary, in the interlocutor fixing the trial, ought not to grant diligence for the citation of havers to the trial, except upon special motion; and before granting it, he should be entitled to require from the counsel an assurance, on his personal responsibility, that no considerable time would be occupied in the recovery of documents. It is probable that the introduction of such a practice as this might lead to the discontinuance to some extent of the present expensive and not always satisfactory system of diligences preparatory to jury trials. In England, it is well known, no such preparatory diligences are in use; and although there are deficiences and anomalies in the English system which we have no desire to transplant to Scotland, and although, on the other hand, the Scottish preparatory diligence affords means of attaining justice which we should be sorry altogether to forego, it would probably be found on examination that both countries might here, as in other departments of the law, advantageously borrow from each other. At the risk of digression, let us glance for a moment at the English practice in this matter.

In England, when a litigant means to found on documents in the possession of the opposite party, he merely gives him "notice to produce" them. If this be disregarded the effect is twofold; secondary evidence of the contents of the documents is admitted, and the party in whose hands they are is precluded from producing them, or from leading proof to rebut the secondary evidence which has thus been admitted. It would probably be a subject for regret if this rule should be introduced in Scotland in its entirety. Secondary evidence may not always be accessible, and where such is the case the power of enforcing production, which the Scotch diligence against havers confers, seems necessary, especially in the absence of a jury, to prevent a failure of justice. Moreover, it might be absurd, under the improved law of evidence which we now possess, to introduce what is really a remnant

of the exploded principle, that a party is not compellable to give evidence against himself, lingering on in the practice of English courts merely because there was once a reason for its existence. It might be wise, however, to give "notice to produce," and make the party failing to comply, liable to the expense of afterwards recovering the documents from him, if for special reasons the Court should grant a diligence. Perhaps also there might be introduced into our practice the "notice to admit," which throws the expense of proving writings or productions on the opposite party declining to give the required admissions. It is remarkable that in England this penalty is almost never incurred. If the documents are in the hands of a third party, he is served with a subpœna duces tecum, which is just a citation as a haver. In practice, however, the subpoena duces tecum is generally introduced into the ordinary subpoena ad testificandum. It is not generally supposed that any material disadvantages arise from the practice of the English law in this respect, although no doubt Scottish agents and counsel might at first feel somewhat uncomfortable at the idea of not seeing the documents relied on until the trial. That is so, however (si parva licet componere magnis), in every case in the Sheriff's Registration Court, and an expert agent often picks out a flaw in a title in the few minutes allowed for examination. Besides, for some "special cause," the Court should have power to give a party the means of examining documents beforehand, as at present. An attempt, however, to apply the rules of the English law, beyond what occurs as natural and expedient in the new form of proof, would be difficult and hazardous. Any endeavour to borrow one portion of a living system of jurisprudence, and insert it in another, must be so. That which has grown up in England in the course of centuries may not thrive in Scotland; and our reference to English practice is chiefly designed to induce our law reformers to look a little deeper into the jurisprudence of the sister country, not for patterns to be servilely copied, but for suggestions which they may manfully and independently work out and adapt.

Some practitioners have charged the new form of taking proofs with a defect which an Act of Sederunt could not, we believe, competently remedy. In taking proofs by commission an important addition is often made, or a serious error corrected, while the evidence taken down by the clerk is being read over to the witness; and it is said that the evidence taken before the Lord Crdi