Conjugal Rights (Scotland) Amendment Act 1861

13 Lord Ordinary to take Proofs in Consistorial Actions.

The Forty-first Section of the Act of the First Year of His late Majesty William the Fourth, Chapter Sixty-nine, in so far as it enacted that " it -shall be lawful for His Majesty's Principal Secretary " of State for the Home Department to appoint from Time to Time " such Number of Persons, being Sheriffs-Depute of Counties, as he " shall think fit, to take Proofs in Consistorial Causes, which Duty " the Persons so appointed shall perform ;" and the Second Section of the Act of the Sixth and Seventh Years of His late Majesty William the Fourth, Chapter Forty-one, shall be and the same are hereby repealed; and in place thereof it is hereby enacted, That where Proof in Consistorial Actions shall be allowed, a Diet of Proof shall be appointed, at which the Evidence shall be led before the Lord Ordinary, and he shall take himself, and either write down with his own Hand the oral Evidence, in which Case it shall be read over to the Witness by the Judge in open Court, and shall be signed by the Witness, if he can write, or the Lord Ordinary shall record the Evidence by dictating it to a Clerk, in which Case it shall, in like Manner, be read over and signed ; or the Lord Ordinary shall cause it to be taken down and recorded in Shorthand by a Writer skilled in Shorthand Writing, to whom the Oath De fideli administratione officii shall be administered, and the Lord Ordinary may, if he think fit, dictate to the Shorthand Writer the Evidence which he is to record; and the said Shorthand Writer shall afterwards write out in full the Evidence so taken by him ; and the Notes of the Judge, or the extended Notes of such Writer, certified by the presiding Judge to be correct, shall be the Record of the oral Evidence in the Cause ; and the Lord Ordinary shall take a Note of the Documents adduced, and any Evidence, whether oral or written, tendered and rejected, with the Ground of such Rejection ; and any Ruling of the Lord Ordinary in reference to the Admission or Rejection of Evidence may be recalled or altered by the Inner House, under a Reclaiming Note against the final Interlocutor of the Lord Ordinary, disposing of the Merits of the Cause ; and the Diet of Proof may be adjourned by the Lord Ordinary, if he shall consider it proper and reasonable so to do ; but the Proofs shall be taken as far as may be continuously, and with as little Interval as the Circumstances or the Justice of the Case will admit of: Provided always, that it shall be competent to the Lord Ordinary, where any Witness or Haver is resident beyond the Jurisdiction of the Court, or by reason of Age, Infirmity, or Sickness is unable to attend the Diet of Proof, to grant Commission to any Person competent to take and report in Writing, according to the existing Practice, the Evidence of such Witness or Haver.