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c. 95.

21 & 22 Vict. as required by the said Act, but may be issued under a stamp provided for that purpose, and approved of by the judge of the Court

Requisitions may

be issued for

the trans

single

paper.

of Probate.

XXVII. Whereas doubts have been entertained whether a requisition can be issued under section eighty-nine of the Court of Probate Act for the transmission of one or more papers only, not being all mission of a the papers and documents in the custody of the person to whom any such requisition may be addressed: Be it therefore enacted and declared, that the said section shall be construed to extend to all requisitions, whether for the transmission of one or of more records, wills, grants, probates, letters of administration, administration bonds, notes of administration, court books, calendars, deeds, processes, Acts, proceedings, or other instruments relating exclusively or principally to matters and causes testamentary.

Power to enforce decree as to costs.

Letters of administra

in Ireland not to be

XXVIII. The judge of the Court of Probate, and the registrars of the Principal Registry thereof, shall respectively, in any case where an Ecclesiastical or other Court having testamentary jurisdiction had previously to the eleventh day of January, one thousand eight hundred and fifty-eight, made any order or decree in respect of costs, have the same power of taxing such costs, and enforcing payment thereof, or of otherwise carrying such order or decree into effect, as if the cause wherein such decree was made had been originally commenced and prosecuted in the said Court of Probate: Provided that in taxing any such costs, or any other costs incurred in causes depending in any such Courts before the time aforesaid, all fees, charges, and expenses shall be allowed which might have been legally made, charged, and enforced according to the practice of the Prerogative Court of Canterbury.

XXIX. Letters of administration granted by the Court of Probate tion granted in Ireland shall not be resealed, under section ninety-five of the twentieth and twenty-first Victoria, chapter seventy-nine, until a certificate has been filed under the hand of a registrar of the Court of Probate in Ireland that bond has been given to the judge of the Court of Probate in Ireland in a sum sufficient in amount to cover the property in England as well as in Ireland in respect of which such administration is required to be resealed.

resealed in England, until sufficient bond

is given.

Affidavits, before

XXXI. In cases where it is necessary to obtain affidavits, declawhom to be rations, or affirmations to be used in the Court of Probate from sworn when persons residing in foreign parts out of Her Majesty's dominions, the parties same may be sworn, declared, or affirmed before the persons emthom roside powered to administer oaths under the Act of the sixth of George the

making

in foreign

parts.

Affidavits,

before

Fourth, chapter eighty-seven, or under the Act of the eighteenth and nineteenth of Victoria, chapter forty-two; provided that in places where there are no such persons as are mentioned in the said Acts such affidavits, declarations, or affirmations may be made, declared, and affirmed before any foreign local magistrate or other person having authority to administer an oath.

XXXII. Affidavits, declarations, and affirmations to be used in the whom to be Court of Probate may be sworn and taken in Scotland, Ireland, the

sworn.

c. 95.

Isle of Man, the Channel Islands, or any colony, island, plantation, or 21 & 22 Vict. place out of England under the dominion of Her Majesty, before any Court, judge, notary public, or person lawfully authorised to administer oaths in such country, colony, island, plantation, or place respectively, or, so far as relates to the Isle of Man and the Channel Islands, before any commissary, ecclesiastical judge, or surrogate, who, at the time of the passing of the Court of Probate Act, was authorised to administer oaths in the Isle of Man or in the Channel Islands respectively, and all registrars and other officers of the Court of Probate shall take judicial notice of the seal or signature, as the case may be, of any such Court, judge, notary public, or person, which shall be attached, suspended, or subscribed to any such affidavit, declaration, or affirmation, or to any other document.

or signature

XXXIII. If any person shall forge any such seal or signature as Persons last aforesaid, or any seal or signature impressed, or affixed, or sub- forging seal scribed, under the provisions of the said Act of the sixth of George the guilty of Fourth, or of the said Act of the eighteenth and nineteenth Victoria, felony. to any affidavit, declaration, or affirmation to be used in the Court of Probate, or shall tender in evidence any such document as aforesaid with a false or counterfeit seal or signature thereto, knowing the same to be false or counterfeit, he shall be guilty of felony, and shall upon conviction be liable to penal servitude for the term of his life, or for any term not less than seven years, or to be imprisoned, with or without hard labour, for any term not exceeding three years nor less than one year; and whenever any such document has been admitted in evidence by virtue of this Act, the Court or the person who has admitted the same may, at the request of any party against whom the same is so admitted in evidence, direct that the same shall be impounded, and be kept in the custody of some officer of the Court or other proper person, for such period and subject to such conditions as to the said Court or person shall seem meet; and every person charged with committing any felony under this Act may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence may be laid and charged to have been committed, in the county, district, or place in which he may be apprehended or be in custody; and every accessory before or after the fact to any such offence may be dealt with, indicted, tried, and, if convicted, sentenced, and his offence laid and charged to have been committed, in any county, district, or place in which the principal offender may be tried.

false oath

XXXIV. Any person who shall wilfully give false evidence, or Persons who shall wilfully swear, affirm, or declare falsely, in any affidavit or taking a deposition before any surrogate having authority to administer oaths before a under the Court of Probate Act, or before any person who before the surrogate passing of the said Act was a surrogate authorised to administer oaths guilty of in any of the Channel Islands, or before any person authorised to administer oaths under this Act, shall be liable to the penalties and consequences of wilful and corrupt perjury.

perjury.

same power

XXXVI. The judge of the Court of Probate shall have and The judge exercise, over proctors, solicitors, and attorneys practising in the said to have the Court, the like authority and control as is now exercised by the over practijudges of any Court of Equity or Common Law over persons practising therein as solicitors or attorneys.

tioners as
judges
of other
Courts.

21 & 22 Vict c. 95.

XXXVIII. In citing the Act of the twentieth and twenty-first Victoria, chapter seventy-seven, in any instrument, document, or Short title proceeding, it shall be sufficient to use the expression "The Court of Probate Act, 1857," and in citing this Act, the expression "Court of Probate Act, 1858."

of Act.

82 & 33 Vict.

c. 46.

All specialty

contract

debts of deceased persons to stand in

32 & 33 VICT. c. 46.

An Act to abolish the Distinction as to Priority of Payment which now exists between the specialty and simple contract Debts of deceased Persons.

[2nd August, 1869.]

Whereas it is expedient to abolish the distinction as to priority of payment between specialty and simple contract debts of deceased persons:

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

1. In the administration of the estate of every person who shall and simple die on or after the first day of January, one thousand eight hundred and seventy, no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by or arises under a bond, deed, or other instrument under seal, or equal degree is otherwise made or constituted a specialty debt; but all the creditors of such person, as well specialty as simple contract, shall be treated as standing in equal degree, and be paid accordingly out of the assets of such deceased person, whether such assets are legal or equitable, any statute or other law to the contrary notwithstanding : Provided always, that this Act shall not prejudice or affect any lien, charge, or other security which any creditor may hold or be entitled to for the payment of his debt.

after
1st Jan.,

1870.

Extent of
Act.

2. This Act shall not extend to Scotland.

APPENDIX OF FORMS.

CONTENTIOUS.

No. 1.-Citation to see Will Proved.

In Her Majesty's Court of Probate.

Victoria, by the Grace of God of the United Kingdom of Great
Britain and Ireland Queen, Defender of the Faith.

Το

of

in the county of

Whereas it appears by an affidavit of A.B. of

day of

sworn on This affida

as also the [first]

day of

Tand

and filed in the Principal Registry of our Court of Probate, vit must be made by the that the said A.B. of claiming to be the executor of C.D., plaintiffs or late of deceased, who died on or about the day of one of them. 18 at intends to prove in solemn form of law as well the alleged last will and testament of the said deceased bearing date the codicil thereto, bearing date the so on for any other codicils], and that the said deceased died a bachelor without parent [or as the case may be], and that you the said are the natural and lawful and only next of kin of the said deceased, and the only person entitled to his personal estate and effects [or as the case may be], in case he be pronounced to have died intestate Now this is to command you the said within eight days after service hereof on you, inclusive of the day of such service, you do cause an appearance to be entered for you in the Principal Registry of our Court of Probate in support of any interest you may have in the personal estate and effects of the said deceased : And take notice, that in default of your so doing the judge of our said Court will proceed to hear the said will [and codicils] proved in solemn form of law, and to pronounce sentence in regard to the validity of the same, your absence notwithstanding.

that

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Indorsement to be made after service.

This citation was served by G.H. on the within-named

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of

day of

18

(Signed)

G.H.

No. 2.-Citation to bring in Probate.

In Her Majesty's Court of Probate.

Victoria, by the Grace of God of the United Kingdom of Great
Britain and Ireland Queen, Defender of the Faith.

To

of

in the county of

This affidavit must be

made by the

Whereas it appears by an affidavit of C.D. of

Sworn on

and filed in the Principal Registry of our Court of Probate, plaintiffs or that probate of the alleged last will and testament [with codicils one of them. thereto] of A.B., late of

day of

18

deceased, was on or about the
granted to you by our
Court of Probate [or at the district registry attached to our Court of
Probate at
]: and that the said deceased died a
bachelor without parent [or as the case may be], and that the said C.D.
is one of the natural and lawful brothers and next of kin of the said
deceased, and one of the persons entitled in distribution to his personal
estate and effects in case he shall be pronounced to have died intestate
[or interested under a former will bearing date, &c., or as the case may
be], and that the said probate ought to be called in, revoked, and
declared null and void in law: Now this is to command you, the said
that within eight days after service hereof on you,
inclusive of the day of such service, you do bring into and leave in the
Principal Registry of our said Court the aforesaid probate, and further
do show cause (if you should think it for your interest so to do) why
the said probate should not be revoked and declared null and void in
law, and the said will [and codicils] pronounced to be null and
invalid.

Dated this
year of our reign.

of

day of

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Citation to bring in Probate.
Name of the Practitioner.

Indorsement to be made after service.

This citation was served by G.H. on the within-named

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