Opinion to be authenticated, and certified copy given. II. Upon such opinion being pronounced, a copy thereof, certified by an officer of such court, shall be given to each of the parties to the action by whom the same shall be required, and shall be deemed and held to contain a correct record of such opinion. Opinion to be applied by the court making the remit. III. It shall be competent to any of the parties to the action, after having obtained such certified copy of such opinion, to lodge the same with an officer of the court in which the action may be depending, who may have the official charge thereof, together with a notice of motion, setting forth that the party will, on a certain day named in such notice, move the court to apply the opinion contained in such certified copy thereof to the facts set forth in the case herein-before specified, and the said court shall thereupon apply such opinion to such facts, in the same manner as if the same had been pronounced by such court itself upon a case reserved for opinion of the court, or upon special verdict of a jury; or the said lastmentioned court shall, if it think fit, when the said opinion has been obtained before trial, order such opinion to be submitted to the jury with the other facts of the case as evidence, or conclusive evidence as the court may think fit, of the foreign law therein stated, and the said opinion shall be so submitted to the jury. Her Majesty in Council or House of Lords on appeal may adopt or reject opinion. IV. In the event of an appeal to Her Majesty in Council or to the House of Lords in any such action, it shall be competent to bring under the review of Her Majesty in Council or of the House of Lords the opinion pronounced as aforesaid by any court whose judgments are reviewable by Her Majesty in Council or by the House of Lords, and Her Majesty in Council or that House may respectively adopt or reject such opinion of any court whose judgments are respectively reviewable by them, as the same shall appear to them to be well founded or not in law. Interpretation of terms. V. In the construction of this Act, the word "action" shall include every judicial proceeding instituted in any court, civil, criminal, or ecclesiastical; and the words "Superior Courts" shall include, in England, the Superior Courts of Law at Westminster, the Lord Chancellor, the Lords Justices, the Master of the Rolls or any Vice-Chancellor, the Judge of the Court of Admiralty, the Judge Ordinary of the Court for Divorce and Matrimonial Causes, and the Judge of the Court of Probate; in Scotland, the High Court of Justiciary, and the Court of Session acting by either of its Divisions; in Ireland, the Superior Courts of Law at Dublin, the Master of the Rolls, and the Judge of the Admiralty Court; and in any other part of Her Majesty's dominions, the Superior Courts of Law or Equity therein. No. XII. ACT 24 & 25 VICT., CAP. XI. AN ACT TO AFFORD FACILITIES FOR THE BETTER ASCERTAINMENT OF THE LAW OF FOREIGN COUNTRIES WHEN PLEADED IN COURTS WITHIN HER MAJESTY'S DOMINIONS. [17th May 1861.] WHEREAS an Act was passed in the twenty-second and twenty-third years of Her Majesty's Reign, intituled An Act to afford facilities for the more certain Ascertain ment of the Law administered in one part of Her Majesty's dominions when pleaded in the courts of another part thereof: And whereas it is expedient to afford the like facilities for the better ascertainment, in similar circumstances, of the law of any foreign country or state with the government of which Her Majesty may be pleased to enter into a convention for the purpose of mutually ascertaining the law of such foreign country or state when pleaded in actions depending in any courts within Her Majesty's dominions and the law as administered in any part of Her Majesty's dominions when pleaded in actions depending in the courts of such foreign country or state: 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, viz. : Superior Courts within Her Majesty's dominions may remit a case, with queries, to a Court of any foreign state with which Her Majesty may have made a convention for that purpose, for ascertainment of law of such state. I. If in any action depending in any of the superior courts within Her Majesty's dominions it shall be the opinion of such court that it is necessary or expedient, for the disposal of such action, to ascertain the law applicable to the facts of the case as administered in any foreign state or country with the government of which Her Majesty shall have entered into such convention as aforesaid, it shall be competent to the court in which such action may depend to direct a case to be prepared setting forth the facts as these may be ascertained by verdict of jury or other mode competent, or as may be agreed upon by the parties, or settled by such person or persons as may have been appointed by the court for that purpose in the event of the parties not agreeing; and upon such case being approved of by such court or a judge thereof, such court or judge shall settle the questions of law arising out of the same on which they desire to have the opinion of another court, and shall pronounce an order remitting the same, together with the case, to such superior court in such foreign state or country as shall be agreed upon in said convention, whose opinion is desired upon the law administered by such foreign court as applicable to the facts set forth in such case, and requesting them to pronounce their opinion on the questions submitted to them and upon such opinion being pronounced, a copy thereof, certified by an officer of such court, shall be deemed and held to contain a correct record of such opinion. Court in which action depends to apply such opinion to the facts set forth in cases, &c. II. It shall be competent to any of the parties to the action, after having obtained such certified copy of such opinion, to lodge the same with the officer of the court within Her Majesty's dominions in which the action may be depending who may have the official charge thereof, together with a notice of motion setting forth that the party will, on a certain day named in such notice, move the court to apply the opinion contained in such certified copy thereof to the facts set forth in the case herein-before specified, and the said court shall thereupon, if it shall see fit, apply such opinion to such facts, in the same manner as if the same had been pronounced by such court itself upon a case reserved for opinion of the court, or upon special verdict of a jury; or the said last-mentioned court shall, if it think fit, when the said opinion has been obtained before trial, order such opinion to be submitted to the jury with the other facts of the case as conclusive evidence of the foreign law therein stated, and the said opinion shall be so submitted to the jury: Provided always, that if after having obtained such certified copy the court shall not be satisfied that the facts had been properly understood by the foreign court to which the case was remitted, or shall on any ground whatsoever be doubtful whether the opinion so certified does correctly represent the foreign law as regards the facts to which it is to be applied, it shall be lawful for such court to remit the said case, either with or without alterations or amendments, to the same or to any other such superior court in such foreign state as aforesaid, and so from time to time as may be necessary or expedient. Courts in Her Majesty's dominions may pronounce opinion on case remitted by a Foreign Court. III. If in any action depending in any court of a foreign country or state with whose government Her Majesty shall have entered into a convention as above set forth, such court shall deem it expedient to ascertain the law applicable to the facts of the case as administered in any part of Her Majesty's dominions, and if the foreign court in which such action may depend shall remit to the court in Her Majesty's dominions whose opinion is desired a case setting forth the facts and the questions of law arising out of the same on which they desire to have the opinion of a court within Her Majesty's dominions, it shall be competent to any of the parties to the action to present a petition to such last-mentioned court, whose opinion is to be obtained, praying such court to hear parties or their counsel, and to pronounce their opinion thereon in terms of this Act, or to pronounce their opinion without hearing parties or counsel; and the court to which such petition shall be presented shall consider the same, and, if they think fit, shall appoint an early day for hearing parties or their counsel on such case, and shall pronounce their opinion upon the questions of law as administered by them which are submitted to them by the foreign court; and in order to their pronouncing such opinion they shall be entitled to take such further procedure thereupon as to them shall seem proper, and upon such opinion being pronounced a copy thereof, certified by an officer of such court, shall be given to each of the parties to the action by whom the same shall be required. Interpretation of terms. IV. In the construction of this Act the word "action" shall include every judicial proceeding instituted in any court, civil, criminal, or ecclesiastical; and the words "Superior Courts" shall include, in England, the Superior Courts of Law at Westminster, the Lord Chancellor, the Lords Justices, the Master of the Rolls, or any Vice-Chancellor, the Judge of the Court of Admiralty, the Judge Ordinary of the Court for Divorce and Matrimonial Causes, and the Judge of the Court of Probate; in Scotland, the High Court of Justiciary, and the Court of Session, acting by either of its Divisions; in Ireland, the Superior Courts of Law at Dublin, the Master of the Rolls, and the Judge of the Admiralty Court; and in any other part of Her Majesty's dominions, the superior courts of law or equity therein; and in a foreign country or state, any superior court or courts which shall be set forth in any such convention between Her Majesty and the government of such foreign country or state. No. XIII. FORMS FOR DEPOSITIONS. I.—FORM FOR COMMISSIONER'S REPORT OF DEPOSITIONS OF WITNESSES. , the day of At in presence of A B, Esq., Advocate, Commissioner appointed to take the depositions of witnesses in the action depending before the Lords of Council and Session at the instance of C D against E F, conform to interlocutor pronounced by Lord , Ordinary, on the day of of which interlocutor a certified copy was produced to the said commissioner, and the said A B having accepted of the said commission, Compeared G H, Writer to the Signet, agent for the pursuer, and I K, Solicitor before the Su 1 preme Courts, agent for the defender-the said A B having chosen L M (designation) to be his clerk, and administered to him the oath de fideli administratione, there also in the county of COMPEARED N O, farmer at married, aged forty years (or otherwise as the case may be), who being solemnly sworn and interrogated as A WITNESS FOR THE PURSUER, depones, &c. BEING CROSS-EXAMINED on behalf of the defender, depones, &c. BEING RE-EXAMINED on behalf of the pursuer, depones, &c. BEING INTERROGATED BY THE COMMISSIONER, depones, &c. All which is truth, as the deponent shall answer to God. Three words delete before signing, and one marginal addition on page NO. If the witness cannot write, the report will conclude-Depones that he cannot write, on account of injury to his hand (or otherwise as the case may be). A B. Commr. COMPEARED also P Q (designation, &c., as above), who being solemnly sworn as A WITNESS FOR THE PURSUER, and being examined in initialibus at the instance of the defender, depones, &c. The defender objects that the witness is inadmissible on the ground of bribery (or otherwise as the case may be); the commissioner repels the objection; and the witness being examined in causâ, depones, &c.—(Or) The defender objects that the witness is inadmissible on the ground of bribery; and although the said objection may not be proved by the initial examination of the witness, yet the defender maintains that the same is well founded, as he will prove by other evidence, which he is not at present prepared to adduce, and accordingly he protests for reprobators against the witness, on the ground above stated. The commissioner repels the objection, whereupon the witness depones, &c., as above. -(Or) The commissioner appoints the deposition of the witness to be taken on a paper apart, and sealed up, to await the future orders of the Court. COMPEARED, also, as A WITNESS FOR THE PURSUER, R S (designation, &c., as above), who states that he is a Quaker (or Moravian, or Separatist, as the case may be) and being examined upon his affirmation and declaration in the form prescribed by Act of Parliament to be emitted by persons of his persuasion in place of an oath, he does solemnly, sincerely, and truly, affirm and declare (see the statutory forms, supra, § 1969, notes). All which is truth. Signed as above. At the conclusion of the depositions a docquet is appended in this form :-What is contained on this and the preceding pages, is the report of the commission set forth in the first page hereof, humbly reported by A B, Commr. If the witness is examined on adjusted interrogatories (See supra, § 1954, et seq.) the report should hear,-The first interrogatory being put to the witness, namely (insert the interrogatory), he depones, &c., and so on throughout all the interrogatories. If any questions not embraced in the interrogatories are put by the commissioner, the report must state that they were so put (see § 1959, thus-and the witness being interrogated by the commissioner, depones). II.—FORM FOR COMMISSIONER'S REPORT OF OATH OF PARTY. When the commission is granted for taking the oath of a party, the report may be in the form given above, with the exception that it should bear, Commissioner appointed to take the oath in litem (or, on reference, &c., as the case may be), of the pursuer (or defender). III.-FORM FOR COMMISSIONER'S REPORT OF DEPOSITIONS OF HAVERS. When the commission is for examining havers, the report should bear, Commissioner appointed for examining havers in the action, &c. COMPEARED, &c. [as above], who being solemnly sworn and examined on behalf of the pursuer as a haver, and being required to produce the writings set forth in the specification No. of process, or one or more of them, he depones that he has certain of the writings called for, being the writings following, viz. [describe them], and he now produces the same; and they are marked by the deponent, commissioner, and clerk, as relative hereto. All which, &c. (as above.) When the writings are numerous, it is usual to produce them conform to inventory, which is mentioned in the report, in place of enumerating the documents, thus:—He depones that he has fifty documents of the kind specified, and he now produces the same, as they are enumerated and described in an inventory thereof, which is marked by the deponent, commissioner, and clerk, as relative hereto; the writings produced being also marked with their initials. The writings are marked and signed by the haver, commissioner, and clerk, thus: -1st January 1856.-Referred to in deposition of Y Z, as a haver of this date. Y Z. If referred to as in an inventory, they are simply initialed by the haver, commissioner, and clerk, the inventory being signed by them. When the diet of proof is adjourned, the report should bear:- day of 9 day of A B, Commr. L M, Clerk. And at re-assembling, a minute should be prefixed to the depositions, thus:— At the at an adjourned diet of the commission aforesaid, Present, the agents above mentioned for the respective parties, before the said commissioner:-COMPEARED, &c. NOTE. The report is usually in the form of a narrative, in which the witness appears to speak either in the first or third person, the question and answer being thrown together into a statement as if made by him. But it is proper at important parts of the deposition, to take down the precise words of the question and answer, thus," Being interrogated," &c., "depones, I," &c., in the first person. This is peculiarly necessary where the deposition is likely to be used in a jury trial, as it enables the party against whom it is tendered to raise, in proper form, any objections he may have to parts of it. This form must, of course, be observed when any objection to a question is stated before the commissioner. In mentioning such objections, and any which may be stated to the admissibility of witnesses, the ground of the objection and of the answer thereto, with the reason on which the commissioner sustains or repels it, should be stated shortly. The same course should be followed where the witness declines to answer, the question being stated at length, and the declinature mentioned thus :-"The witness declines to answer the question, on the ground," &c. When the depositions mention numbers, these ought always to be stated at length in words, and not in figures. Any additions which may have to be made to the depositions, should be written on the margin, and signed by the witness, commissioner, and clerk, writing their christian names on one side of each addition, and their surnames on the other. Interlineations and erasures ought to be carefully avoided. If any words require to be deleted, that should be done by drawing the pen through them; and their number should be mentioned at the conclu |