another opportunity has been allowed at a subsequent stage for recovering such documents.(0) 6. Recovering Documents before Pleadings lodged.— The Act of Sederunt of 1839 contains no provisions for granting diligences in certain circumstances where the Court of Session has a discretion to do so. In that Court, where a party desires to found on writings which are not within his own reach, and which his adversary does not produce because he has not founded on them, there is a discretionary power of giving a diligence to recover the writings before forcing the pleading to be lodged. The rules which the Court of Session follow in exercising this discretion are not very clearly laid down; but while a party is not allowed to use this diligence for the purpose of fishing for documents to see if they will afford him any ground of action or defence, and while no general rule is followed, it seems that he may get the diligence where his object is only to bring forward his statements in a specific form.(p) These rules reduce the power of granting diligences to recover documents to be founded on before the relative pleadings are lodged to a minimum. In fact, they scarcely allow of its being exercised at all before the first pleadings are lodged, and therefore limit it to the case of the diligence being required before revisal or before closing. When the rule is so reduced it comes very near to the powers conferred on the Sheriff by the Act of Sederunt. 7. Mode of carrying out Diligences.-When diligences are granted, they are carried out under the same rules as (0) A. S. 1839, chap ix.-Proof and Circumduction. (p) Dickson on Evidence (2d ed.), 21338, note 4. commissions to take other evidence. The only difference is, that the party craving the diligence first lodges a specification, stating the writings he wants, and that the commission is then granted to him to recover them, or such part of them as the Sheriff may think fit. The havers are cited like witnesses, and a copy of so much of the specification as concerns each is served on him at the time of citing. Their examination proceeds in the same way as the examination of a witness, except that it is limited to the questions whether they have the documents called for, or have any knowledge of what has become of them. If the havers refuse to produce the documents, the objection is dealt with in the same way as the objection of a witness to 5. Proceedings at Diet-What if 13. Recalling Witnesses. Party absent. 14. Recording the Evidence. 6. Witnesses to be examined sepa- 15. Adjourning the Proof. rately. 7. Oath or Affirmation to be taken. 8. Examination in initialibus. 16. Declaring Proof Closed. 17. Allowing Additional Proof. 1. Of Allowing Proof.-After the record is closed the statute of 1853 directs the Sheriff to hear the parties upon the merits of the case and on their respective pleas; or where he deems proof to be necessary, to appoint a diet for proof. (q) This places on the Sheriff the duty of looking at the record, with the view of seeing whether there are materials for disposing of the case without proof or whether a proof is necessary. If there be room for doubt, he will send it to the debate roll; but if there be no room for doubt that a proof is requisite, it is unnecessary to send the case as a matter of routine to the debate roll. On closing the record it is convenient to ask the parties what they think on this point; and on hearing their view the Sheriff will generally be able to decide at once whether to order a debate or to allow a proof. If he appoint a debate on the relevancy, the proceeding is the same as in a debate after a concluded proof, and the little that requires to be said on the subject will be said afterwards. If, either with or without a debate, he allow a proof, the form of order requires consideration. 2. Form of Order for Proof.-"When a proof is allowed in cases in which no averments are made by the defender, the proper interlocutor is to allow the pursuer a proof of his averments, and to the defender a conjunct probation;' but when the defender makes averments, and both parties are allowed a proof, a form of interlocutor not unusual in such a case, viz., to allow both parties a proof and to either party a conjunct probation, is erroneous and misleading. In such cases the proper form of interlocutor is, 'allow both parties a proof of their respective averments, and to the pursuer a conjunct probation,' because the defender is bound to lead his conjunct probation when he leads his proof in chief. After the pursuer has led his proof in chief and the defender his conjunct probation and proof in chief, the (g) 16 and 17 Vict. c. 80, § 5. pursuer is entitled to a probation conjunct to the defender's proof in chief; but after that the defender is entitled to no farther proof, unless he can show that proof has been led in the pursuer's conjunct proof of such a nature as entitles him to a proof in replication, in which case he must apply to the Court for leave to lead such proof in replication, and must show cause why it should be allowed."() If part of the case only is relevant to go to proof, that part should be distinguished by the interlocutor.(s) It is often not advisable to endeavour to do this, as involving a judgment on a partially disclosed case. In such cases, as well as in cases where the whole relevancy is doubtful, it is customary to allow a proof "before answer," which has the effect of reserving entire every question of law and relevancy raised on the record. This form of interlocutor does not however reserve questions as to the admissibility of evidence; and if in any case it should be found desirable to take the evidence first and then judge of its admissibility afterwards, the order for proof should be specially framed to make that clear.(t) When proof is allowed prout de jure, it means that parole proof, and every kind of evidence that might be laid before a jury, is to be admitted. When proof habili modo is allowed, it is understood to mean that the whole, or some part of the (r) Per Lord Justice-Clerk Inglis in Magistrates of Edinburgh v. Warrender, 11 Nov. 1862, 1 Macph. 13. For the mode of applying for proof in replication see infra, art. 18. (8) In practice this is only done when the part not allowed to go to proof is considerable. If the great bulk of a case is relevant, an interlocutor allowing a proof of it is not understood to mean that every word is relevant; and objections to the admissibility of particular parts of the evidence remain open. (t) Robertson v. Murphy, 7 Dec. 1867, 6 Macph. 114; Haldane v. Speirs, 7 Mar. 1872, 10 Macph. 537; Macvean v. Maclean, 8 Mar. 1873, 11 Macph. 506. proof, to be ascertained in the course of leading it, is to be limited to the writ or oath of the party's opponent. (u) These expressions in allowing proof are, however, somewhat antiquated, and it is better for the judge to embody his meaning in the English language, as the phrases are now apt to be misunderstood. In the order for proof it is unnecessary to insert a warrant to cite witnesses and havers; because the Act of 1853 makes a certified copy of the order itself a sufficient warrant for all such citations. (v) When the claim made in the action is in amount above £40, the time for commencing the proof should be fifteen days at least after the date of allowing it. This provision is made in order to give time to either party to remove the case to the Court of Session for jury trial. It is so seldom made use of that in practice the interval (if the proof can be taken earlier) is not allowed unless it be asked. (x) 3. Precognition of Witnesses. In all cases depending on fact, the witnesses should be precognosced at the earliest stages. There are few who have not seen instances of the inconvenience produced by delaying the ascertainment of the facts till after the pleadings were closed. The expense, however, of precognoscing witnesses not being allowed in practice, as a charge against an opponent, until order for proof has been pronounced, precognitions generally take place at this stage.(y) (u) Gray v. Scott, 9 Jan. 1868, 6 Macph. 197. (v) 16 and 17 Vict. c. 80, § 11. (x) A. S. 1839, § 126; Ritchie v. Ritchie, 22 Oct. 1870, 9 Macph. 43, shows that this provision applies only where the claim is ex facie over £40. (y) A. S. 1 March 1861, art. 16, note (b). At one time this was the only stage at which a precognition could well take place. Prior to 15 Vict. c. 27, § 1, it was a fatal objection |