Imágenes de páginas

fendant on the part of N., and that the plaintiff should In Kennedy v. Gouveia, (3 D. & Ry.503), where, by a take a lease, and execute a counterpart thereof, when memorandum between the plaintiff of the first part, and called upon to do so by the defendant on the part of N. the defendant on behalf of M. of the second part, it was The memorandum was signed by the defendant in his witnessed that it was agreed between the said parties, own name, without any reference to N. The Court hela &c., and the defendant signed the agreement

in his own

name simply, the Court held the defendant liable; for -whether rightly or not may perhaps be open to ques- although the memorandum purported in its commencetion--that, by the terms of the memorandum, all the ment to be made on behalf or M., yet in the body of it the acts to be done on the part of N., and amongst others defendant proceeded to agree for himself personally, and the granting of the lease, were to be performed by the signed it in his own name, and not as agent. Abbott, defendant himself ; and on that ground they held the it is agreed between the parties. Who are the parties ?

C. J., observed, “ The language of the instrument is, defendant personally liable on the contract. Lord Camp- The plaintiff and the defendant. The defendant, therebell, C. J., said, “ The defendant is to receive the rent, fore, has made himself personally liable.” and he would be the party to whom the counterpart of

Burrell v. Jones (3 B. & Al. 47) and Hall v. Ashurst the lease would be executed; he is the acting party, (1 Cr. & M.714) will be found, on examination, to have and signs the agreement, not for and on behalf of N., solicitors of the assignees of a bankrupt tenant, upon

been decided on the same ground. In the former, the but in his own name. The fair inference is, that the whose lands a distress had been put by the landlord, gave defendant had the legal estate, and was acting as trus- the following undertaking:- “We, as solicitors to the tee for N., and by his direction.” And he distin- assignees, undertake to pay the landlord his rent,” &c.; guished the case from Lewis v. Nicholson, (16 Jur., and it was held that the words “ as solicitors to” were part 1, p. 1041 ; 21 L. J., Q. B., 311), on the ground merely descriptive of the character in which they personthat “in that case the defendants were acting merely of." Holroyd, J., said, “ The import of the instru

ally undertook, and were not equivalent to

on behalf as solicitors, and were not themselves to do the act ment is not that the assignees undertake through the contracted for, and therefore the Court decided there medium of the defendants as their solicitors, but that was no liability incurred by them.” And per Wight, they, the defendants themselves, as solicitors, underman, J.-" The question is, whether the defendant take. If the defendants are not bound, nobody is; for has so contracted as to render himself personally liable. it is clear that the assignees are not bound.”. `In Hall This must be determined by seeing who is to per- undertake to bear and pay, on behalf of the London

v. Ashurst the defendant wrote to the plaintiff, “I form the agreement. Now, from the terms of the creditors, two-thirds of the expenses incident to ceragreement, there is no doubt that it is to be performed tain proceedings;" and the Court took the distinction, by the defendant himself.” Crompton, J., also relied that the terms of this undertaking imported not a proon the fact that the memorandum was signed by the mise on behalf of the assignees that they would pay, but defendant in his own name, without any reference to signces; and Lord Lyndhurst, C.B., said, (p.716), “The

a promise by the defendants themselves to pay for the asN., and distinguished the case on that ground from undertaking here is not an undertaking on behalf of Spittle v. Larender, (5 Moore, 270), where the contract another person to do an act, but it is an undertaking to was signed by the defendant in his own name as agent do an act on behalf of another person.” And again, of B.

(p. 719), “It is a contract by the defendant that he The following cases will afford some clue to the lan- behalf of other persons to bear and pay.”

would bear and pay for other persons, not a contract on guage which the Courts have considered to import an

Again: where it appears, on the face of the contract, intention that the agent should himself perform the act that it could not bind the supposed principal, as in contracted for.

Watson v. Murrell, (1 Car. & P. 307), where the deIn Norton v. Herron (1 R. & M. 229; S. C., 1 Car. fendant, the attorney for a parish, on an indictment & P. 648) the defendant, by an agreement purporting against them for the non-repair of a road, entered into to be made by him on behalf of A., stipulated that agreed to pay the costs,” the Court will presume that

an agreement, whereby,“ on the part of the parish, he he, the defendant, would exccute to the plaintiff a lease the contract was intended to bind the agent personally, of certain premises, and signed the agreement in his that being the only reasonable construction of which it own name. Best, C. J., held that the defendant was is capable; and it was on this ground that Lord Camppersonally liable. And where the defendants, directors bell, C. J., distinguished the case of Watson v. Murrell of a joint-stock newspaper company, gave a promissory the circumstance that the act to be done is to be per

in his judgment in Lewis v. Nicholson. But although note as follows—“On demand, we jointly and severally formed by the agent renders him personally liable, the promise to pay to L. A. 2501. for and on behalf of the fact that the act is to be performed by another is not Wesleyan Newspaper Association,” and this note was conclusive to shew that the agent is not liable; for the signed by them as “ directors,” it was held that the agent, by expressly covenanting or agreeing for himself, words " we severally promise to pay" must apply to and not in the name of his principal, that something shali the persons who signed the note, and not to the com- and this though he describe himself in the agreement

be done by the principal, may thereby bind himself, pany, and were equivalent to a promise by each of as acting for and on behalf of the principal. (Appleton them personally to pay, and that the defendants were v. Binks, 5 East, 148). In several cases, in which the therefore personally liable on the note. Healey v. terms of the contract were, or were supposed to be, Storey, (3 Exch. 3); Iveson v. Conington, (1 B. & Cr. ambiguous, the Courts have relied on the fact that the 160), in which the language was, that the defendant contract was signed by the agent in his own name personally” undertook and agreed &c.; Ex parte Bent- simply, without reference to his principal, as shewing

an intention to create a personal liability in the agent. ley, (2 Deac.

& C. 578), where the words were, “On (See Kennedy y. Gouveia and Tanner v. Christian). And behalf of F. P., I give you notice that I am ready and in Spittle v. Lavender, (5 Moore, 270), the circumhereby offer to allow and pay" &c.; and Harper v. stance that the defendant had signed the agreement as Williams, (4 Q. B. 219), are to the same effect. agent of B. was considered by the Court to render it open to the construction that the defendant intended Tanner v. Christian with the principle on which not to incur any personal liability.

Downman v. Williams and Lewis v. Nicholson were We will now consider two cases in which it was decided. The language may, as was said by the Court, held that the language used did not shew an intention be consistent with the defendant being a trustee; but to bind the agent personally. The first of these is it appears to be also consistent, to say the least, with Downman v. Williams, in error, (7 Q. B. 103). The his being a mere agent. The language of the memodefendant had written to the plaintiff as follows:- randum is—“Memorandum of agreement between the “Your bill of costs against J. W., amounting to 531., i defendant, on the part of N.,” &c.-" The defendant, on I undertake to have paid to you.-Pembrey Works. the part of N., agrees to let,” &c. This language is Your bill of charges in this matter, amounting to 5271., similar to the words in Downman v. Williams and I also undertake (on behalf of Messrs. Esdaile & Co.) Lewis v. Nicholson, and is not the same as in Norton v. to pay, and will arrange with you the time and mode Herron, on which the Court relied, for in that case the immediately after the dividend meetings.” The Court body of the agreement ran—"And, first, the said G. H. of Exchequer Chamber, reversing the judgment of the (the agent) doth hereby agree to execute a lease,” &c. Court of Queen’s Bench, held that the defendant was And again, in Tanner v. Christian the Court appear to not liable on the undertaking to pay the 5271. Tindal, have relied on the expression, “ paying unto the deC. J., delivering the judgment of the Court, said, “ As fendant, for the use of N., the yearly rent of 401.,” aş to the first point, the very terms of the letter itself, shewing that the rent was not only payable, but reserved "I undertake (on behalf of Messrs. Esdaile & Co.) to to the defendant, and that therefore he would be the pay, would seem to us, in their natural meaning, to party by whom the lease was to be granted. But the point rather to a promise made by one person as agent whole language of the memorandum appears to point for another, than as intended to bind the party speak. rather to the defendant being the agent of N., and to ing in the character of a principal; for, upon the latter an agreement to let by N. through the agency of the supposition, there would appear to be no reason what- defendant, reserving the rent to N., but payable to the ever for mentioning the name of the principal. To say defendant on his behalf; and that the plaintiff, when the least, however, the expression is capable of bearing called on by the defendant on the part of N., was to this construction; and when contrasted with the form take a lease from, and execute a counterpart to, N.; of expression used by the defendant in the part of the otherwise one is tempted to say, with the Court of same letter immediately preceding, viz. Your bill of Exchequer Chamber in Downman v. Williams, there costs, amounting to 531. 78. 2d., I undertake to have appears to be no reason whatever for mentioning the paid to you,' the distinction between the two modes of name of N. If the defendant was a trustee, the conexpression strongly confirms the interpretation we think stant introduction before every stipulation of the words it demanded in itself."

on the part of N.” was useless, and altogether superIn the other, Lewis v. Nicholson, (16 Jur., part 1, fluous; and it is difficult to see how the defendant p. 1041), the defendants, who were solicitors to the could have more carefully guarded against the possiassignees of Arliss & Tucker, who were bankrupts, bility of being considered otherwise than as an agent wrote to the solicitor of the plaintiff the following of N. The circumstance of the memorandum being letter:~"Re Arliss & Tucker-Sir,-In consideration signed without reference to the principal cannot, since of Mr. J. H. L., the plaintiff, for whom you act, con- Downman v. Williams and Lewis v. Nicholson, in both senting to the sale, &c., we hereby, on behalf of the of which the defendants signed in their own names assignces, consent that the net proceeds of the sale shall simply, be considered as throwing much light on the be paid over to you or your client, to the extent,” &c., intention in a case where the memorandum in its comand signed it in their own names simply. In reply mencement and body purported to be made by the to this letter, the plaintiff's attorney wrote to the defendant on the part of Ň. It is clear also that N. defendants : -Re Arliss & Tucker. In compliance might have been bound by such a memorandum. with the undertaking given by, you herein &c., I hereby, on the part of Mr. J. H. L., consent to the sale," &c., and signed the same, describing himself as A FULL abstract of the Solicitor-General's Testamensolicitor to the said J. H. L. The Court, after advert- tary Jurisdiction Bill will be found below. It proposes ing to the circumstance that both the defendants' and to deal with the subject in a vigorous and we think a the plaintiff's attorney were acting as solicitors in the satisfactory manner. The whole of the existing jurismatter, and that it was clear that the plaintiff's attorney acted only as an agent, and relying on the previous dictions are to be abolished, and a testamentary court, case of Downman v. Williams, held that the defend consisting of a single judge, (whose place during temants were not liable on the contract. They further porary absence may be supplied by the Master of the held, that the circumstances under which the letters Rolls or a Vice-Chancellor), is to have cognisance of containing the contract were written might be looked all matters and questions testamentary, to for the purpose of ascertaining the intention of the parties, but that a subsequent correspondence contain: interpretation clause informs us, “all matters relating ing admissions by the defendants was inadmissible ; and to the probate of wills, codicils, appointments by will that assuming that the defendants had acted without or writing in the nature of a will, and other testamenauthority from the assignees, they could not be sued as tary instruments as to personal estate, the grants of principals on the contract, but that the proper remedy administration of the effects of deceased persons, and would be by an action on the case for a false repre- the establishment of testamentary instruments as to sentation of their authority, or by an action on an

real estate." implied contract for the existence of an authority which they professed to have; and they cited Jenkins v. The practice of this court is to be assimilated in all Hutchinson, (13 Jur., part 1, p. 763; 13 Q. B. 744)*. respects to that of the Court of Chancery. There is no

It will be observed, on examining the grounds of provision for local courts or offices, but persons residing the judgments in Burrell v. Jones and Hall v. Ashurst, beyond the London post district may apply for prothat both those cases are distinguishable from the two bates and administrations through the Post-office; and cases last cited. It seems difficult, however, to recon. eile the conclusion at which the Court arrived in the present Commissioners for taking Oaths in Chan

cery may take affidavits. The probates and administra* See also Polkill v. Walter, (3 B. & Ad. 114). tions are to be advertised and printed, and copies sold.

e., as the

It is proposed to give to the Court jurisdiction over England and Wales, now having jurisdiction, power, or authoreal estate for testamentary purposes-that is to say, to rity to grant or revoke probates of wills or letters of adminisempower the Court to establish wills of real estate and tration of the effects of deceased persons, shall absolutely cease to appoint a real representative to any deceased person, and determine, and no jurisdiction or authority in relation to which representative is to have the same powers of sale, legacies, inventories, and accounts, or the distribution of the mortgage, and disposition over the real estate of the estates and effects of deceased persons, or any testamentary deceased (other than real estate vested in a trustee cause or matter, or any matter arising out of or connected with or trustees for sale, with power to give discharges) as

the grant of administration, shall belong to or be exercised by executors or administrators have over freehold estate. any such court or person as aforesaid.

4. All jurisdiction, power, and authority in relation to the This provision is intended to supply a very pressing granting probate of wills and letters of administration of the want; and in substance it is unexceptionable; but it effects of deceased persons now vested in or which might be requires some amendment in detail. Thus it is not exercised by any court or person in England or Wales, togeclear whether the existence of a mortgagee or trustee ther with complete jurisdiction for the purpose of determining for sale, not appointed by the will, would or would not all questions and matters relating to matters testamentary, exclude the jurisdiction of the Court; and it is not shall belong to and be vested in her Majesty, and shall be clear that the mere vacancy of the office of trustee for exercised in the name of her Majesty in a court to be called sale (though capable of being supplied) would not oust

“ The Testamentary Court." the jurisdiction. The case, we think, is one of the many

5. The Testamentary Court shall, for the purpose of exerwhich might much more safely be left to the discretion cising the jurisdiction, power, and authority hereby vested in of the Court than be provided for by strict regulations, of the High Court of Chancery, by statute or otherwise, now

the same court, have all the jurisdiction, power, and authority which can seldom be framed in terms at once compre: exerciseable by the Court of Chancery with respect to matters hensive and precise. The Legislature may very well within its jurisdiction, and also all powers and authorities, by trust the Court not to displace the testator's own statute or otherwise, now exerciseable by the Prerogative Court trustees for sale without sufficient cause.

or any other court, or body politic or corporate, or any person It is proposed to smother all the questions not ac- whomsoever, exercising or entitled to exercise jurisdiction in . tually in course of litigation respecting bona notabilia relation to matters testamentary: and jurisdiction, by making valid all void and voidable 6. The practice and proceedings in the court, except where probates and administrations.

otherwise directed by this act, or by any general order of the On the whole, the provisions of the bill seem to be Lord Chancellor in pursuance of the provisions of this act, simple and complete, and we hope hat the very liberal shall be similar to the practice and proceedings of the Court arrangements for compensation which it contains will of Chancery. in their present or in some modified form be accepted in London or Middlesex, or elsewhere, as her Majesty in

7. The court shall hold its sittings at such place or places with a good grace both by those who demand compensa- Council shall from time to time appoint. tion and by the public, so that this important reform

8. It shall be lawful for her Majesty to appoint, by letters. may not be longer delayed.

patent under the Great Seal of the United Kingdom, a fit and

proper person, being or having been a barrister at law of fifteen NOTES OF THE WEEK.

years' standing at the least, or an advocate of the Court of Arches of ten years' standing at the least, to be the judge of

the court. In the case of The Ostsee, the Supreme Court of Prize have decided that officers ofther Majesty's navy it shall be lawful for the Lord Chancellor to direct that the

9. During the temporary or occasional absence of the judge, detaining neutral ships without sufficient grounds, and Master of the Rolls, if he shall consent thereto, or any of the under a misapprehension of their duty, are liable to Vice-Chancellors, shall act as judge of the court

. make good the loss and expense their act may have 10. It shall also be lawful for the Lord Chancellor to direct occasioned.

that during the temporary or occasional absence of the Master It may be as well to remind our readers that affidavits of the Rolls, or any of the Vice-Chancellors, the judge of the sworn in and after the approaching Easter Term are to court shall act as a judge of the High Court of Chancery. be expressed in the first person, and divided into para

11. The judge to be appointed under this act shall have the graphs; each paragraph is to be numbered consecu

same powers and privileges, as well in the Testamentary Court tively, and, as nearly as may be, confined to a distinct as in the Court of Chancery, and shall be subject to the same portion of the subject. No costs are to be allowed for provisions, duties, and observances, as the Vice-Chancellors any affidavit, or part of an affidavit, substantially de- appointed under an act passed in the 5 Vict. c. 5, and he shall

have rank and precedence next after the Vice-Chancellors. parting from this rule. (Reg. Gen., Mich. Vac., 1854,

12. He shall have a secretary, usher, and trainbearer, to be rule 2). The form will be as follows:

from time to time appointed and removed by him at his plea“In the Queen's Bench.

sure; and the secretaries, registrars, and other officers of the “ Between A. B., plaintiff, Court of Chancery appointed to attend the Lord Chancellor, and

and the principal registrar, registrars, and other officers of the

C. D., defendant. Testamentary Court appointed under the provisions of this act, “1. I, E. F., of &c., make oath and say, that &c.

shall attend such judge when sitting in court or in chambers, 2. And I further say, that” &c.

as circumstances shall require, and as the Lord Chancellor shall order or direct.

13. The salary of such judge, and the salaries of his secreBILL IN PROGRESS.

tary, usher, and trainbearer, shall be of the same amounts, and

paid out of the same funds, and in like manner as the salaries ABSTRACT OF A BILL

of the Vice-Chancellors appointed under the said act of the (Prepared and brought in by Mr. Solicitor-General

, Sir George 5 Vict. c. 5, their secretaries, ushers, and trainbearers, are now Grey, and Mr. Attorney-General)

payable. To abolish the Jurisdiction of all the Ecclesiastical and Pecu

14. Retiring pension. 5 Vict. c. 5.

15. Lord Chancellor may appoint persons to keep order in liar Courts in England and Wales respecting Wills and Administrations, to establish a distinct Court of Probate

16. Power to supply vacancies in office of judge appointed and Administration, and otherwise amend the Law in re under this act. lation to Matters Testamentary.

17. Seal of the court. 1. Commencement of act.

18. The principal office of the court, to be called the “ Tes. 2. Interpretation clause.

tamentary Office," shall be established in such place as her 3. The jurisdiction and authority of all ecclesiastical, royal Majesty in Council shall from time to time appoint; and until peculiar, peculiar, manorial, and other courts and persons in another testamentary office shall be appointed by her Majesty


in Council, the present public registry of the Prerogative Court in the High Court of Chancery shall be commissioners for shall be used as the testamentary office.

taking oaths in the court. 19. There shall be the following officers of the court; (that 31. All the laws and statutes now in force concerning is to say) —

attornies and solicitors shall extend to solicitors practising in One principal registrar;

the court. Five registrars; and

32. Orders to be drawn up by registrar; office copies, &c. So many principal clerks, assistant clerks, officers, mes. 33. The accountant-general of the Court of Chancery and sengers, and servants as the Lord Chancellor, with the the taxing masters of the same court shall act as accountantsanction of the Commissioners of her Majesty's Trea- general and taxing masters of the Testamentary Court. sury, may from time to time think fit.

34. Accountant-general, &c. to act on orders of the court. 20. Power to increase number of registrars and official 35. Appeal to the Lord Chancellor or Court of Appeal in clerks.

Chancery, and to the House of Lords. 21. The principal registrar and all the other officers of the 36. Any person desirous of proving any will, or obtaining court, except as hereinafter mentioned, shall be appointed by letters of administration to the effects of any deceased person, the Lord Chancellor.

is, either personally or through a solicitor, to apply for the 22. Certain present officers of the Prerogative Court to have same at the testamentary office of the court, and leave or cause equivalent offices in the new court.

to be left in such office the will, if any, of the deceased, (unless *23. The principal registrar shall, subject to any orders to the same shall have been previously deposited in the court or be made by the Lord Chancellor, have the general superin- the registries thereof, or shall for any other reason be not tendence and control of the offices of the court and the officers required to be left), and also a copy of the will, if any, and an thereof, and the business transacted in such offices, and at the affidavit made by the person or some one of the persons ap. time of being appointed shall be or have been an advocate of plying for such probate or administration, with a schedule the Court of Arches of ten years' standing, or a barrister-at. thereto, in a form similar to the form set forth in the Schedule law of the like standing, or have served as registrar of the (A.) to this act, with such variations as the nature and circumcourt for a period of five years.

stances of the case may require, and such other papers as may 24. No person shall hereafter be appointed registrar or be necessary for the purpose of obtaining such probate or ad. principal clerk to the registrars who shall not be or have been ministration. an advocate of the Court of Arches, a barrister-at-law, a proctor 37. Where the person applying for such probate or admi. in the courts at Doctors' Commons or in some ecclesiastical nistration shall be resident out of the limits of the London court in England or Wales, or a solicitor of the Court of district post, such application, together with the documents Chancery: provided, that any person who at the time of the necessary for the purpose of obtaining such probate or admipassing of this act is acting as registrar or deputy registrar of nistration, may be addressed and sent through the General Postany ecclesiastical court shall be eligible to the office of registrar office to the principal registrar. or principal clerk to the registrars.

38. The principal registrar shall cause printed forms to be 25. The principal registrar and registrars shall execute their prepared and circulated, containing directions to commissioners respective offices in person, and shall hold the same during for taking oaths in the court as to the inquiries they are to their good behaviour, subject to be removed by order of the make of persons applying for probate or administration, and Lord Chancellor for some good and reasonable cause to be in printed forms of affidavits, applicable, as far as circumstances such order expressed ; the other officers of the court shall exe. will permit, to the different cases likely to arise, in order that cute their respective offices in person, and not by deputy, and such printed forms of affidavits may be filled up and signed, shall hold their offices during the pleasure of the Lord Chan- and sworn to by the applicant. cellor.

39. If and when the principal registrar shall be satisfied 26. The servants and messengers shall be appointed by the upon any such application as aforesaid, whether made directly principal registrar, with the approbation of the Lord Chan- at the testamentary office or sent to him through the General cellor.

Post-office, that the same ought to be granted, he shall signify 27. All persons who at the time of the passing of this act such satisfaction to the person making such application, and are advocates of the Court of Arches shall be entitled to prac- subject to such regulations as may be made by the Lord Chantise as counsel in any

of her Majesty's

courts of law or equity cellor as to the mode of payment of the stamp duty payable in England or Wales, in like manner in all respects, and with by law on such probate or administration, and the fees pano the same rank and precedence, and the same eligibility to ap- able thereon, shall cause such probate or administration to be pointments under acts of Parliament or otherwise, as if they granted accordingly, and to be delivered or transmitted

through had respectively been duly called to the degree of barrister-at the General Post-office to the person making such application law on the day on which they respectively were admitted as as aforesaid, or his solicitor. advocates in the said Court of Arches.

40. Form of probate and administration. 28. Every person who at the time of the passing of this act 41. Probates and administrations to be printed. is actually admitted and practising as a proctor and notary in 42. The principal registrar shall, within such time after the the courts at Doctors' Commons, or any ecclesiastical court in grant of probate or administration as the Lord Chancellor shall act, not later than one year thereafter, be admitted as a soli transmitted through the post to each of the following offices citor of the High Court of Chancery, upon the production of or places; (that is to say), his admission as such proctor and notary, or an official cer. 1. The Metropolitan Register Office of Births and Deaths tificate thereof, and upon the production of an official certificate

in London ; that such admission continues in force, and upon signing the 2. The Office of her Majesty's Prerogative in Dublin; roll of the Court of Chancery, but not otherwise ; and such 3. The Office of the Commissary of the County of Midadmission shall entitle such proctor so admitted as a solicitor lothian in Edinburgh ; to be afterwards in like manner admitted, if he shall so think 4. The Office of the Registrar of Births and Deaths in the fit, and to be inrolled as an attorney of her Majesty's supe. district within which the deceased died, in all cases rior courts of common law at Westminster.

where the place of his death shall be known to have 29. Every person who at the time of the passing of this act been within any such district; is actually serving or has served as an articled clerk to a per- 5. Such other offices or places, if any, as the Lord Chanson entitled to act as a proctor in the courts at Doctors' Com

cellor shall from time to time direct. mons, or in some ecclesiastical court in England or Wales, and entitled to take such articled clerk, and who has not been to be so transmitted as aforesaid, 'may be inspected by any

43. Any printed copy of a will, probate, or administration, admitted as a proctor, shall be entitled, at any time within one person, on payment of a fee of sixpence. articled clerk, to be admitted as a solicitor

of the High Court mentary office so many printed copies of the will or adminije,

44. The principal registrar shall also retain in the testa. of Chancery, upon signing the roll of the same court

, and
with tration as he shall think necessary for inspection

and selet the

like privileges as if he had been admitted as a proctor and having regard to the hature of the instrument, the amount of notary at the time of the passing of this act. solicitors of the court, and all commissioners for taking

oaths / proved or granted after this act shall come into operation

45. Official printed copies of wills or administrations to be


shall, so long as any copies retained for sale shall be undis. in the judgment of the court, under the special circumstances posed of, be issued to any person applying for the same, on of any particular case, it shall be proper or advisable so to do, payment of such fee as shall be fixed for the same by any to appoint as such administrator a person to be under the imorder of the Lord Chancellor, to be made as hereinafter mediate control of and immediately accountable to the court, mentioned.

and to allow to such person such remuneration out of the estate 46. Every printed copy issued by the principal registrar as the court shall think fit. shall be stamped in such manner as to denote the amount of 65. Administration pendente lite. ad valorem duty which has been paid in respect of such pro- 66. It shall be lawful for the court to appoint a receiver of bate or letters of administration.

the real estate of any deceased person pending any suit in the 47. Official written copy of part of a will may nevertheless court touching the validity of any will of such deceased person. be obtained.

67. Remuneration to administrators and receivers pendente 48. A note containing particulars of every probate or ad- lite. ministration to be advertised in London Gazette.

68. After grant of administration, no person to have power 49. Executor or administrator within twelve months to file to sue as an executor. inventory of effects of deceased.

69. Revocation or determination of temporary grants not to 50. In case of neglect of executor or administrator to file prejudice actions or suits. inventory within such period, the court, on application of any 70. The court shall have the same or the like power and person interested, may order same to be filed, with costs. control over all wills and testamentary instruments, and over

51. Practice as to caveats in the court to correspond with all papers or writings purporting to be testamentary, as the practice as to caveats in the Prerogative Court.

Prerogative Court now has or can exercise with respect to 52. Commissioners for taking caths to receive and transmit matters within the jurisdiction of the same court.

71. Court may remove from registry or cancel a forged will, 53. Instead of citation, summons to be issued by testa- or restore a will which has been tampered with. mentary office, but according to practice of Prerogative Court. 72. It shall be lawful for the court, on motion, petition, or

54. Any person having an interest in, and being desirous of, otherwise, in a summary way, whether any suit shall be deestablishing any will of the real estate of any deceased person, pending in the court with respect to any probate or adminis. or of recalling or revoking any probate or administration which tration or not, to order any person to produce and bring into may have been granted through the testamentary office, may the testamentary office of the court, or otherwise as the court irestitute a suit in the court for the purpose, either by bill or may direct, any paper or writing, being or purporting to be claim, as he may be advised.

testamentary, which may be shewn to be in the possession or 55. No demurrer for want of parties, but suit to proceed, if under the control of such person ; and if it shall not be shewn jadge think fit.

that any such paper or writing is in the possession or under 56. The determination of the court in any such suit, if the the control of such person, but it shall appear that there are court shall think fit so to declare by its decree or order reasonable grounds for concluding that he has the knowledge therein, shall bind all persons named or referred to therein by of any such paper or writing, it shall be lawful for the court a particular or general description, including persons under to direct such person to be examined upon interrogatories redisability, whether parties to the suit or not, and persons specting the same, and such person shall be bound to answer unborn.

such interrogatories, and, if so ordered, to produce and bring 57. Any person named or referred to by any such decree or in such paper or writing, and shall be subject to the like order as last aforesaid, and purporting to be bound thereby, process of contempt in case of default in not answering such though not a party to the suit, may have such relief, if any, interrogatories, or not producing or bringing in such paper or against the same, by way of rehearing or appeal, or otherwise, writing, as he would bave been subject to in case he had been as he would have been entitled to in case he had been ori. a party to a suit in the court, and had made such default as ginally made a party thereto.

aforesaid; and the costs of all such proceedings and of such 58. Existing acts as to sureties in administration bonds production as aforesaid shall be in the discretion of the court. repealed.

73. Court may direct validity of a will to be tried by jury. 59. Every person to whom any grant of administration 74. Attesting witnesses to will may be examined at discre. shall be committed shall give bond to the judge of the court tion of court. Costs. for the time being, and, if the court shall so require, with one 75. It shall be lawful for any person interested in the real or more surety or sureties, conditioned for duly collecting, estate of any deceased person, whether such person shall have getting in, and administering the personal estate of the de- died before or after the passing of this act, to apply to the ceased, which bond shall be in such form as the Lord Chan- court in any suit, or upon motion or petition, in a summary cellor shall from time to time by any general order direct. manner, without bill or claim filed, to appoint some person to

60. Such bond shall be in a penalty of double the amount be the representative of the real estate of such deceased perunder which the estate and effects of the deceased shall be son, or any part thereof; and the court, if it shall think fit, sporn, unless the court shall in any case think fit to direct the shall, upon notice of such application to such persons, if any, same to be reduced, in which case it shall be lawful for the

as it shall think fit, have power to make such appointment as court so to do, and also to direct that more bonds than one to such real estate only of the deceased as may not be vested shall be given, so as to limit the liability of any surety or in trustees or a trustee in trust for sale, with power to give sureties to such amount as the court shall think reasonable. discharges to purchasers, or over which there shall not be a 61. Power to court to assign bond.

power of sale exerciseable by any trustee or trustees or other 62. Pending testamentary suits (other than appeals to Privy person or persons, with a like power of giving discharges to Council) transferred to new court. Saving of present right of purchasers, or any part of such real estate. appeal to Privy Council.

76. Every real representative so to be appointed shall have 63. Power to judge of Prerogative Court to deliver written full power to sell and convey the real estate of the deceased, judgments in causes heard before act comes into operation. or so much thereof as shall be comprised in or affected by

64. Where a person has died or shall die wholly intestate the order appointing such real representative, and to receive as to his personal estate, or leaving a will affecting personal the rents and profits thereof, and to raise money by mortgage estate, but without having appointed an executor thereof willing of the same, and to give discharges for such purchase and and competent to take probate, and it shall appear to the court mortgage monies, and rents and profits, and shall apply the to be necessary or convenient in any such case to appoint some money to be received by him for the purposes and in the person to be the administrator of the personal estate of the de manner in such order to be expressed, but no purchaser or ceased, other than the person who, if this act had not passed, mortgagee shall be in any manner bound to see to such appliwould by law have been entitled to a grant of administration cation. of such personal estate, it shall not be obligatory upon the 77. In all suits respecting the real estate comprised in or court to grant administration of the personal estate of such affected by any order appointing a real representative, the real deceased person to the person who, if this act had not passed, representative so appointed shall represent such real estate in would by law have been entitled to a grant thereof, but it shall the same manner and to the same extent as the executor or be lawful for the court, in its discretion, to appoint such per- administrator of any deceased person represents the personal son as the court shall think fit to be such administrator, upon estate of such deceased person. his giving such security (if any) as the court shall direct; and if 78. Except where otherwise provided, none of the pro

« AnteriorContinuar »