such disobedience shall happen in Scotland it shall be competent to the Lord Ordinary on the Bills, upon an application made to him by or on behalf of any party suing out such commission, and upon proof of such disobedience made before him, to direct the issue of letters of second diligence, according to the forms of the Law of Scotland, to be used against the person disobeying such rule or order.

For payment of witnesses, &c.

VII. Provided always, and be it enacted, That every person whose attendance shall be so required shall be entitled to the like conduct money and payment of expenses and for loss of time as for and upon attendance at any trial in a court of law; and that no person shall be compelled to produce under such rule or order any writing or other document that he or she would not be compellable to produce at a trial, nor to attend on more than two consecutive days, to be named in such rule or order.

No. III.

ACT 15 & 16 VICT., CAP. XXVII.

AN ACT TO AMEND THE LAW OF EVIDENCE IN SCOTLAND.

[17th June 1852.

WHEREAS it is expedient to alter and amend the Law of Evidence in Scotland: Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows, viz.

Witnesses not to be excluded by reason of crime, &c.

I. No person adduced as a witness in Scotland before any court or before any person having by law or by consent of parties authority to take evidence, shall be excluded from giving evidence, by reason of having been convicted of or having suffered punishment for crime, or by reason of interest, or by reason of agency or of partial counsel, or by reason of having appeared without citation, or by reason of having been precognosced subsequently to the date of citation; but every person so adduced, who is not otherwise by law disqualified from giving evidence, shall be admissible as a witness, and shall be admitted to give evidence as aforesaid, notwithstanding of any objections offered on the above-mentioned grounds:

Right to examine witnesses as to credibility not affected.

Provided always, that nothing herein contained shall affect the right of any party in the action or proceeding in which such witness shall be adduced to examine him on any point tending to affect his credibility:

Not competent to adduce as a witness any person who shall be acting as an agent in the action.

Provided also, that it shall not be competent to adduce as a witness in any action or proceeding any person who shall at the time when he is so adduced as a witness be acting as agent in the action or proceeding in which he is so adduced, excepting in so far as the same may be competent by the existing law and practice of Scotland; and

Where any person adduced has been an agent, no plea of confidentiality allowable. Where any person who is or has been an agent shall be adduced and examined as

a witness for his client, touching any matter or thing, to prove which he could not competently have been adduced and examined according to the existing law and practice of Scotland, it shall not be competent to the party adducing such witness to object, on the ground of confidentiality, to any question proposed to be put to such witness on matter pertinent to the issue.

Party to an action may be adduced as a witness, unless it be shewn that he has a substantial interest.

II. It shall be competent to adduce and to examine as a witness, as aforesaid, in any action or proceeding any party to such action or proceeding, even although individually named in the record or proceeding, unless it shall be shewn to the satisfaction of the Court, or of the person having authority to take evidence as aforesaid, that such party has a substantial interest in such action or proceeding, and is not merely nominally a party thereto.

Witness may be examined as to having made a different statement.

III. It shall be competent to examine any witness who may be adduced in any action or proceeding as to whether he has on any specified occasion made a statement on any matter pertinent to the issue different from the evidence given by him in such action or proceeding; and it shall be competent in the course of such action or proceeding to adduce evidence to prove that such witness has made such different statement on the occasion specified.

Witness may be recalled after examination.

IV. It shall be competent to the presiding judge or other person before whom any trial or proof shall proceed, on the motion of either party, to permit any witness who shall have been examined in the course of such trial or proof to be recalled.

Laws and practice inconsistent with this Act repealed,

V. All statutes, laws, and practice now in force respecting evidence in Scotland shall be and the same are hereby repealed, in so far as inconsistent or at variance with the provisions of this Act, but the same shall in all other respects remain in full force.

No. IV.

ACT 16 & 17 VICT., CAP. XX.

AN ACT TO ALTER AND AMEND AN ACT OF THE FIFTEENTH YEAR OF HER PRESENT MAJESTY FOR AMENDING THE LAW OF EVIDENCE IN SCOTLAND.

[9th May 1853.]

Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

§ 2 of 15 & 16 Vict., c. 27, repealed.

I. The second section of the Act of the fifteenth year of Her present Majesty, chapter twenty-seven, is hereby repealed.

So much of § 1, of 15 & 16 Vict., c. 27, as to incompetency of persons who are agents

in actions being witnesses, repealed.

II. So much of the first section of the said Act as provides that "It shall not be competent to adduce as a witness in any action or proceeding any person who

shall at the time when he is so adduced as a witness be acting as agent in the action or proceeding in which he is so adduced, excepting in so far as the same may be competent by the existing law and practice of Scotland," is hereby repealed.

As to examination of witnesses, whether named in the record or not.

III. It shall be competent to adduce and examine as a witness in any action or proceeding in Scotland any party to such action or proceeding, or the husband or wife of any party, whether he or she shall be individually named in the record or proceeding or not; but nothing herein contained shall render any person, or the husband or wife of any person, who in any criminal proceeding is charged with the commission of any indictable offence, or any offence punishable on summary conviction, competent or compellable to give evidence for or against himself or herself, his wife or her husband, except in so far as the same may be at present competent by the law and practice of Scotland, or shall render any person compellable to answer any question tending to criminate himself or herself, or shall in any proceeding render any husband competent or compellable to give against his wife evidence of any matter communicated by her to him during the marriage, or any wife competent or compellable to give against her husband evidence of any matter communicated by him to her during the marriage.

This Act not to apply to cases of adultery, &c.

IV. Nothing herein contained shall apply to any action, suit, or proceeding instituted in Scotland in consequence of adultery, or for dissolving any marriage, or for breach of promise of marriage, or in any action of declarator of marriage, nullity of marriage, putting to silence, legitimacy, or bastardy, or in any action of adherence or separation.

Adducing of party as a witness not to have effect of reference to his oath.

V. The adducing of any party as a witness in any cause or proceeding by the adverse party shall not have the effect of a reference to the oath of the party so adduced: Provided always, that it shall not be competent to any party who has called and examined the opposite party as a witness thereafter to refer the cause or any part of it to his oath, and that in all other respects the right of reference to oath shall remain as at present established by the law and practice of Scotland.

Not to affect authority of Court as to judicial examination.

VI. Nothing herein contained shall alter or affect the authority or practice of the Courts in Scotland as to judicial examination.

No. V.

ACT 17 & 18 VICT., CAP. XXXIV.

AN ACT TO ENABLE THE COURTS OF LAW IN ENGLAND, IRELAND, AND SCOTLAND TO ISSUE PROCESS TO COMPEL THE ATTENDANCE OF WITNESSES OUT OF THEIR JURISDICTION, AND TO GIVE EFFECT TO THE SERVICE OF SUCH PROCESS IN ANY PART OF THE UNITED KINGDOM.

[10th July 1854.]

Whereas great inconvenience arises in the administration of justice from the want of a power in the superior courts of law to compel the attendance of witnesses resident in one part of the United Kingdom at a trial in another part, and the ex

amination of such witnesses by commission is not in all cases a sufficient remedy for such inconvenience: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

Courts of Law in England, Ireland, and Scotland may issue process to compel the attendance of witnesses, although not within their jurisdiction.

I. If, in any action or suit now or at any time hereafter depending in any of Her Majesty's Superior Courts of Common Law at Westminster or Dublin, or the Court of Session or Exchequer in Scotland, it shall appear to the court in which such action is pending, or, if such court is not sitting, to any judge of any of the said courts respectively, that it is proper to compel the personal attendance at any trial of any witness who may not be within the jurisdiction of the court in which such action is pending, it shall be lawful for such court or judge, if in his or their discretion it shall so seem fit, to order that a writ, called a writ of subpoena ad testificandum, or of subpoena duces tecum, or warrant of citation, shall issue in special form, commanding such witness to attend such trial, wherever he shall be within the United Kingdom, and the service of any such writ or process in any part of the United Kingdom shall be as valid and effectual to all intents and purposes as if same had been served within the jurisdiction of the court from which it issues.

Statement to be made at foot of writ that it is issued by special order.

II. Every such writ shall have at foot thereof a statement or notice that the same is issued by the special order of the court or judge, as the case may be; and no such writ shall issue without such special order.

Witnesses making default to be punished by the courts of the country in which the

process was served.

III. In case any person so served shall not appear according to the exigency of such writ or process, it shall be lawful for the court out of which the same issued, upon proof made of the service thereof, and of such default, to the satisfaction of the said court, to transmit a certificate of such default under the seal of the same court, or under the hand of one of the judges or justices of the same, to any of Her Majesty's Superior Courts of Common Law at Westminster, in case such service was had in England, or in case such service was had in Scotland to the Court of Session or Exchequer at Edinburgh or in case such service was had in Ireland to any of Her Majesty's Superior Courts of Common Law at Dublin; and the court to which such certificate is so sent shall and may thereupon proceed against and punish the person so having made default, in like manner as they might have done if such person had neglected or refused to appear in obedience to a writ of subpoena or other process issued out of such last mentioned court.

Persons not to be punished if it shall appear that sufficient money has not been ten

dered to pay expenses.

IV. None of the said courts shall in any case proceed against or punish any person for having made default by not appearing to give evidence in obedience to any writ of subpoena or other process issued under the powers given by this Act, unless it shall be made to appear to such court that a reasonable and sufficient sum of money to defray the expenses of coming and attending to give evidence, and of returning from giving such evidence, had been tendered to such person at the time when such writ of subpoena or process was served upon such person.

Act not to prevent the issuing of a commission to examine witnesses.

V. Nothing herein contained shall alter or affect the power of any of such courts to issue a commission for the examination of witnesses out of their jurisdiction, in any case in which, notwithstanding this Act, they shall think fit to issue such commission.

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Not to affect the admissibility of evidence where now receivable.

VI. Nothing herein contained shall alter or affect the admissibility of any evidence at any trial where such evidence is now by law receivable, on the ground of any witness being beyond the jurisdiction of the court, but the admissibility of all such evidence shall be determined as if this Act had not passed.

No. VI.

ACT 18 VICT., CAP. XXV.

AN ACT TO ALLOW AFFIRMATIONS OR DECLARATIONS TO BE MADE INSTEAD OF OATHS IN CERTAIN CASES IN SCOTLAND.

[25th May 1855.]

Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

Affirmation instead of oath to be allowed in certain cases.

I. If any person called as a witness in any court of civil judicature in Scotland, or requiring or desiring to make an affidavit or deposition, shall refuse or be unwilling from alleged conscientious motives to be sworn, it shall be lawful for the court or judge or other presiding officer or person qualified to take affidavits or depositions, on being satisfied of the sincerity of such objection, to permit such person instead of being sworn to make his or her solemn affirmation or declaration in the words following, videlicit:

"I, A B, do solemnly, sincerely, and truly affirm and declare that the taking of any oath is, according to my religious belief, unlawful; and I do solemnly, sincerely, and truly affirm and declare," &c.:

Which solemn affirmation and declaration shall be of the same force and effect as if such person had taken an oath in the usual form, and shall in like manner infer the pains of perjury in case of falsehood.

Her Majesty may, by Order in Council, direct provisions of this Act to be applied to

all Courts in Scotland.

II. It shall be lawful for Her Majesty from time to time, by an Order in Council, to direct that all or any part of the provisions of this Act shall apply to all or any court or courts in Scotland; and such order shall be notified by the Secretary of State to the clerk or other officer of the court or courts therein named respectively, and shall be published in the Edinburgh Gazette; and within one month after such order shall have been so notified and published, such provisions shall extend and apply in manner directed by such order; and any such order may be in like manner from time to time altered and annulled.