:

avoided, such as, 'You heard such a person say such and such words?' instead of What did you hear?' 'You paid £100?' instead of 'Did you pay any sum, and if so, what sum?' Where the witness (as is often the case in jury cases) is examined on a list of interrogatories, each one in the series ought to be slowly and distinctly read over to him by the commissioner, and the record may run thus:The first interrogatory being put, he answers and depones ("Yes, I did ").' Where the witness adds something of his own accord, it ought to be so put down: But I add that -A witness is not bound to answer any question which may tend to criminate himself, or expose himself to a charge of moral turpitude. The question may be put and recorded, but it is the duty of the commissioner to tell the witness he may decline to answer that question; and the parties have the benefit of any inference which may fairly arise from his declinature. It will be found greatly to abridge the record and ensure clearness, to adopt the first personal pronoun as applicable to the witness. Where the third person is adopted, confusion often may occur in speaking of a third party, which the frequent repetition of the word deponent can only prevent. Unless with some important questions, or with an unwilling witness, it is unnecessary and tedious to record each question at length, and then the answer; but great care must be taken to observe whether the witness adopts the very words of any question. As much as possible he ought to be left to tell his own story in his own words; and the very words ought to be recorded, however vulgar or provincial, rather than words of a higher standard, the import of which it is doubtful whether the witness fully understands. The use of Latin terms and phrases in records of proof ought to be avoided. In former practice, all depositions were closed with the phrase 'causa scientiæ patet ;' and where the witness knew not the facts sought to be proved, he was said to have sworn nihil novit in causa.' There ought to be no contractions or figures used in the deposition, and no erasures. Where an error has been committed, it is preferable to score out the words (leaving them still to be read), and declare their number and place at the end, or to certify them on the margin, by the commissioner's initials, agreeably to the English practice. It is an advantage to commence with a new paragraph, or a line extending into the margin, every change in the interrogation, whether of the pursuer or defender. It is of great consequence that the party calling the witness finish his examination completely before the other party commences. The other party is entitled to examine the witness not only cross, or upon the matter on which he has been already examined, but also in chief, as it is called, or as a witness for himself on his averments or case; and after this the party first examining may re-examine in cross.-See Act of Sederunt, 10th July 1839, sec. 78. To resume examinations on each side is to be deprecated, and ought to be checked. In the case 3d March 1846, Lockyer v. Sinclair, the Court, by special interlocutor, declared it to be the duty of a commissioner' to preserve the character of the records of Court, by excluding impertinent and offensive matter wholly irrelevant to the cause; to protect the witnesses from intimidation and insult; to prevent judicial examinations being made the source of grievous oppression, and firmly to check all attempts to protract the examinations, in point of time, to an extent which forms a great abuse, and a most severe burden in point of expense.' In the same case the Court reprobated the practice of repeating protests for leave to prove the contrary, recorded after every answer unsatisfactory to the protestor. It is just another way of telling the witness on oath that she has perjured herself. It is quite out of form. A general protest (for reprobators) at the end of the witness's examination is quite enough.'-Per Lords Justice-Clerk (Hope), Medwyn, and Moncreiff. The commissioner himself, rather than the clerk, at the close ought slowly and distinctly to read over the deposition to the witness. The reading is essential to its validity, as otherwise it would not support an indictment for perjury, the accuracy then depending on the clerk, who may have committed an unintentional but serious error. The commissioner will thus the better notice all mistakes, and see them properly corrected and authenticated. The witness, as well as the commissioner and clerk, must subscribe every page, and all additions on the margins as well as docquets on all writings produced. The commissioner should add J. P. or Com'. to his signature, although the omission is not fatal. Where objections are stated to a witness being received, or to any question, the objections

and answers must be taken down shortly; and it is as well to do so on separate paper. The witness ought to be withdrawn during all such discussions, and ought not to be informed of the debate or decision. The commissioner may decide on the objection, but the party has an appeal to the Court; in which case the deposition of the objected witness, or the answer to the objected question, ought to be written on separate paper, and put under sealed covers, to abide the decision of the Court. Where the objection is repelled, and an appeal taken, this appears imperative; but where the objection is sustained, and appears to the commissioner to be very obviously well founded, it is a matter of discretion in him whether he ought to take the objected matter at all, until the Court have decided to the contrary of his deliverance. It is preferable to admit witnesses, questions, and production of writings, than to refuse them, because, if the refusal be afterwards found wrong, a re-examination becomes necessary. But death or emigration may prevent or delay such; whereas, in the other way, little harm is done, save some little waste of time and expense. Unless, therefore, the inquiry is obviously away from the case, it is the wisest course to receive evidence under objection, and send it to the Court. It ought to be recollected that the commissioner is not judge of the effect, but only, in the first instance, of the competency of the evidence, and that the effect of any part of the proof may not be fully seen until taken in connection with the whole; and that a party has the right to manage his own case, and lead his evidence in his own way, and is not to be dictated to as to the proper course of leading his proof, as it may appear to others ignorant of all its bearings. Where the commissioner is not qualified to judge on legal points in cases of objections, his preferable mode is to make avizandum with the objection to the Court, without any decision or expression of opinion, in which case the objected matter ought to be taken and placed under seal. According to the usual style of the commission, the commissioner is required to place the whole proof under seal, and to transmit it to the clerk of Session; but in practice this is seldom or never done. The proof is given to the agent who presented the commission; but if it be insisted on, and there appear to the commissioner good reasons for this precaution, he will be authorized to adopt the measure of sealing it. The clerk has a lien over the proof for payment of his own and the commissioner's fees. The latter is not fixed by any regulation, but is well understood in practice. The clerk's fees are regulated by the table of fees for professional writings. The agent is personally liable in the fees. 4th July 1851, M.Lachlan, 23 Jur. 611.

The following is the usual style for the preamble and conclusion of a report of a proof under an act and commission from the Court of Session. In inferior Courts the preamble is seldom so very formal :

Preamble to a Court of Session proof taken on Commission.
eighteen hundred and

the day of

At years ;There was produced to A. B., Esquire, one of her Majesty's justices of the peace for the county of an act and commission (or certified copy interlocutor) dated the day of eighteen hundred and years, from the Lord C. Ordinary, on the summons (or petition) and action depending before the Lords of Council and Session at the instance of D. E., pursuer, against G. H., defender, whereby, inter alia, commission is granted to the said commissioner to take the oaths and examinations of witnesses for the said pursuer (or defender); of which commission the said A. B. accepted, and made choice of J. K. to be his clerk, who also accepted, and gave his oath de fideli, as use is.

Thereafter compeared the pursuer personally (if such be the case), and by L. M., his agent; as also the defender personally (if present), and by N. O., his agent. Note. When the opposite party does not attend, let it be noticed thus :— The agent for the pursuer (or defender) produced certificate of due intimation of this diet to the opposite party (or agent), but he failed to attend.

The agent for

called, compeared

reported diligence executed against witnesses, who, being

J. F., residing at

aged

who, being solemnly sworn, depones. Docquet at the end of proof when concluded.

Where witnesses or havers are absent, let the following entry be made :

The pursuer's agent produced execution against the following witnesses, citing them to appear at this time and place; and who, being severally called, failed to appear, namely (state the particular names and desiguations).

In modern practice, proofs in the Court of Session are generally taken before one of the judges, with or without a jury, and therefore commissions to the country are rare (excepting for recovery of writings from havers). See 29 and 30 Vict. c. 12, s. 1. The previous notes, however, may be of some benefit to justices in their ordinary Courts.

The Lord Justice-Clerk (Hope) held that justices had no power, in cases before them, to grant commissions to take proof, but that the whole should be taken before the same justices who finally adjudicate on the cause.-2d Dec. 1856, Scott. This is the rule in strictly criminal cases, but it is doubtful if such apply to civil actions.

ACT OF GOD-An accident occurring without the intervention of man, such as loss by storms and fire, excepted in policies of marine insurance. Ordinary common carriers also avail themselves of this exception.

ACT OF GRACE. Such is the name given to the Scotch Act 1696, c. 32, passed for the relief of royal burghs from the burden of alimenting civil prisoners, and which in future was thereby imposed on the incarcerating creditor. The Act has been greatly improved by the statute 6 Geo. IV. c. 62 (1825). The debtor must be actually in prison, and he cannot apply for aliment when at large on a sick bill.-9th June 1821, M‘Laine, 1 S. D. 61. He is entitled to aliment if it be a civil pecuniary debt, although its origin was in a delict, as damages for assault; but not where it is for a fine, as punishment, in which case he is supported on the prison dietary. He has, however, been found entitled to its benefit on imprisonment for non-payment of a penalty for contravention of the Salmon-fishing Act. -16th Feb. 1837, Robertson, 15 S. 572. (But under the more recent statutes regulating salmon-fishing, it is doubted whether this decision would be repeated.) See also 29th June 1856, Advocate-General, 28 Jur. 303. He is not entitled to the benefit where imprisoned to compel performance of a fact under his own power, such as to subscribe a deed, or deliver an article in his own possession. But a decree to find caution is not a fact within his own power, especially if he swears he cannot find such.-11th July 1818, Edwards, 19 F. C. 550. As the law now stands, ten shillings must be consigned with the keeper of the prison with every civil prisoner, in security of the aliment. The debtor may now make his application either to the magistrates of the burgh or to the sheriff of the county, or his substitute.-Prisons Amendment Act, 1844, 7 and 8 Vict. c. 34, s. 13, and reserved by the existing Prisons Act, 23 and 24 Vict. c. 105, s. 76 (1860). He must make oath that he cannot support himself in prison. By Act of Sederunt for Burgh Courts, 12th Nov. 1825 (and which may now be held to rule in Sheriff Courts), it is provided that the creditor or his agent shall be allowed to be present when the debtor makes oath; and where it can be conveniently done, notice may be appointed to be given to the creditor or his agent of the day and hour when the debtor is to depone; and they may put all pertinent interrogatories to the debtor regarding his ability to aliment himself in prison.' No greater latitude of examination should be allowed. Inquiries into previous transactions are reserved for the process of Cessio.-18th Jan. 1823, Forman; 9th June 1824, Hogg. If allowed the benefit of the Act upon the oath, no reclaiming petition is competent; but the creditor

may within fourteen days lodge a condescendence of facts relevant for authorizing the Court to recall the award of aliment, but which in the meantime must be paid to the prisoner. The condescendence is answered, and the further procedure is as in other summary processes. The amount of aliment is at the discretion of the Court, but ought to be a uniform rate in each prison. In some burghs the rate was varied according to the station or quality of the debtor, and in cases of aliment for bastards only one-half rate was sometimes allowed, which was to punish, and therefore was wholly inconsistent with the object of the procedure. An advocation is competent to the Court of Session. When required, the debtor must grant a disposition omnium bonorum to the incarcerator, at his expense, for behoof of all his creditors, and which is exempted from stamp duty, if granted expressly under the Act, and not extrajudicially, although under the threat of immediate imprisonment.-23d Feb. 1837, Rae, 13 S. 653. If required in writing, and refusing to grant such conveyance, he is not entitled to aliment during the time he shall persist in such refusal.-29th Jan. 1836, Johnston. Where the prisoner is refused aliment, or does not apply within thirty days, the consigned money is returned; and on liberation, so with the part thereof not exhausted. On the aliment being awarded, payment commences immediately, and by the Act draws back to the date of imprisonment (though from the date of application would appear more reasonable), and notice is given to the creditor of the order, and to supply further aliment. Notice still appears necessary, though he or his agent be present at the oath and award. If the aliment is exhausted, and so certified by the keeper, a warrant is granted for liberation, and no further notice is necessary to the incarcerator. The debtor may be reincarcerated under the same diligence, but this cannot be done oppressively; and there ought to be some change of circumstances in the debtor. -11th March 1836, Crawford, 14 S. 688; 24th Nov. 1858, White, 31 Jur. 12 and 21 D. 28. Justices of peace have no jurisdiction in this matter.

ACTS OF PARLIAMENT. The Scotch Acts were originally proclaimed throughout the kingdom. But by 1581, c. 128, proclamation at the market-cross of Edinburgh was declared sufficient. British statutes require no promulgation, because that the people are held to be present by their representatives. Difficult questions have occurred as to whether certain statutes apply to Scotland. The general rule is that, being passed by the British Parliament, all are British statutes, unless some portion of the United Kingdom be expressly excluded, or the Act be declared to apply only to a certain portion; or, from the locality described in the enactment, or the specific nature of the provisions, it appears that it obviously was meant to apply to one country, or to exclude another.-See an instructive example of this under the article Appeal to Circuit. There have been instances of Acts being put down by eminent lawyers as limited in their operation, but afterwards found by the Courts of law to the contrary.-See Tait's Justice, p. 5, where that eminent and most accurate writer states that the Acts 6 Geo. III. c. 25, 4 Geo. IV. c. 29, and 4 Geo. IV. c. 34, with reference to servants, do not extend to Scotland,-a plea not so much as hazarded in the numerous cases of appeal from convictions thereon. There is also an instance of a statute (the Apportionment Act) found applicable to Scotland many years after it had become law, and after much money had passed contrary to its provisions.-7th March 1844, Fordyce v. Bridges; affirmed 23d Dec. 1847. All the statutes of the same session are considered as one statute, but divided into chapters. As this led to questions as to the commencement of separate Acts, it was enacted (33 Geo. ш. c. 13, 1793) that the Clerk of Parliament should indorse on every writ or Act the day it received the royal assent; and from that date, unless it was provided otherwise, its operation is to begin. By 13 Vict. c. 21 (1850), it is provided that all future Acts shall be divided into sections, without introductory words; that reference to former Acts shall be made merely by citing the year of the reign, with chapter and section, without the title; that the usual rule of interpretation of words shall be held repeated in every Act; that the repeal of an Act repealing a prior one shall not revive that first Act, unless so enacted, and repealed provisions to remain in force until new provisions come into operation; and every Act to be deemed a public Act unless the contrary be declared. This statute introduces a great improvement in legislation. The clause of interpretation is in the following words, held repeated in all subsequent Acts :

'In all Acts, words importing the masculine gender shall be deemed and taken to include females, and the singular to include the plural, and the plural the singular, unless the contrary as to gender or number is expressly provided; and the word "month," to mean calendar month, unless words be added showing lunar month to be intended; and "county" shall be held to mean also county of a town or of a city, unless such extended meaning is expressly excluded by words; and the word "land" shall include messuages, tenements, and hereditaments, houses, and buildings of any tenure, unless where there are words to exclude houses and buildings, or to restrict the meaning to tenements of some particular tenure; and the words "oath," "swear," and "affidavit " shall include affirmation, declaration, affirming and declaring in the case of persons by law allowed to declare or affirm instead of swearing.'

Note.-Justices are advised never to trust to any abridgment of a statute, but to obtain from their clerk the official copy, and make sure that there is no amending statute of posterior date. This is to be observed especially in cases under the Mutiny Act. It is an annual statute, and great care must be taken to consider the existing statute, which has occasional alterations, and from neglect of this much error has been often committed.

See the author's Curiosities of Legislation.

ACTS OF SEDERUNT are made by the judges of the Court of Session, empowered by the Act 1540, c. 93, so called because made during the sessions or sittings of the Court. A quorum of nine judges is necessary to sanction these Acts. This power, intended merely to regulate the forms of process, has frequently been exceeded so as to declare what is henceforth to be held law. Balfour, in 1469, remarked, 'Na judgess within this realme has powar to mak any lawis.' The Act of Sederunt, 14th Dec. 1756, introducing new grounds of irritancy of tenants' leases, is an eminent example to the contrary. It is the practice, in passing general statutes for Scotland, to empower the Court of Session to pass Acts of Sederunt to regulate the details and forms of proceeding. The Acts of Sederunt, as collected by Mr. Alexander, form a code of curious and interesting regulations on many matters far wide of the forms of process,-such as fixing the price of ale in Edinburgh, 1725; sale of bread, 1736 and 1743; of butcher meat, 1682, 1717, and 1736; and of fowls, dressed and undressed, 1669; a tax for cleaning the streets of Edinburgh, imposed 1687 and 1691; to prohibit the servants of the Court, upon the last day of the session, from throwing pocks, dust, sand, or stones within the Session-house or Parliament Closs,' under the penalty of three months' imprisonment, and for ever debarred the house and service thereof, 1663.

ACT OF WARDING-The warrant issued by magistrates of royal burghs against residenters therein, for imprisonment for civil debts and obligations. Until recently this was the only direct mode of imprisonment of debtors in Scotland, except under the absurd and expensive form of horning and caption under the signet; but it is now extended to sheriffs, in the form of the fiat on an expired charge for sums above £8, 6s. 8d. (£100 Scots), and to perform facts, and on sheriff's small debt decrees for sums beyond £8, 6s. 8d. But where imprisonment has followed, the party may have the case reheard in the ordinary Courts.

ACTILIA-Armour-harnessing for war.

ACTIO REDHIBITORIA was an action in the civil law answering to our action of repetition of the price on rejection of a commodity. But the actio quanti minoris of the civil law is unknown in Scotch law. A purchaser must reject a commodity, and is not entitled to receive it and insist on a reduction of the price because of inferiority in quality.

ACTIONS-Processes at law. They are either civil or criminal. Civil actions are divided into petitory, where payment of a debt or performance of fact is asked; possessory or preservative, to obtain and to regulate all questions of possession; penal, for punishment of offences and recovery of penalties; declaratory, judicially