Maclean and Hope v. Fleming

Subject_1 Process Subject_2 Evidence (Scotland) Act, 1866 Subject_3 Commission Subject_4 Witnesses Abroad—Jury Trial—Act of Sederunt, 1841. Facts: Held (repeating the judgment of the Court of Feb. 23, 1867) that commission to examine witnesses beyond the jurisdiction of the Court in terms of the Evidence (Scotland) Act 1866, must be preceded by affidavit and adjusted interrogatories, it being the intention of the Act to assimilate its practice to that applicable to jury trial, and the latter being fixed by the Act of Sederunt of 1841.

Clark and Watson , for the defender, argued—The object of the Evidence Act in dispensing with proof by commission is as far as possible to assimilate its practice to that applicable to jury trial. That practice is fixed by the 17th section of the Act of Sederunt of 1841, which provides that such examination as is here craved by the pursuers shall proceed upon affidavit and interrogatories; and, it being so fixed, it is not within the discretion of the Court to dispense with these formalities.

Young and Mackenzie , in answer—The Act says nothing as to the practice of jury trial. In the 10th section of the Sheriff Court Act there is a provision in terms the same as the third exception in the second clause of the Evidence Act, and affidavit and interrogatories are unknown in the practice of the Sheriff Court. Further, the system of examination by affidavit and interrogatories is highly inconvenient, and is not to be enforced by implication when it is not per expressum enjoined.