Vesting of Ordnance Estates. Principal Secretary of State for the Time being shall be or shall of State for the be intended to be a Party, it shall be sufficient to call or describe War Departhim by the Style or Title of "Her Majesty's Principal Secretary ment." " of State for the War Department," without naming him; and every such Contract, Conveyance, Surrender, Lease, Assurance, Deed, or Instrument may be executed by such last-mentioned Principal Secretary of State, or by any other of Her Majesty's Principal Secretaries of State for the Time being, by signing his Name thereto, and if the Instrument so executed be in the Form of a Deed, by setting or affixing a Seal thereto and delivering the same as his Deed; and whenever any Contract, Conveyance, Surrender, Lease, Assurance, Deed, or Instrument shall be executed by any other Principal Secretary of State than the Principal Secretary of State for the War Department, the Principal Secretary of State so executing the same shall for that Time and on that Occasion, and for the Purposes thereof, be deemed to be the Principal Secretary of State for the War Department. No. 7. of 1860. An Ordinance to extend to this Colony certain Rules and BE [30th April, 1860.] E it enacted by His Excellency the Governor of Hongkong, with the Advice of the Legislative Council thereof, as follows: I. The Rules, Orders, and Regulations of the Superior Courts Rules, &c. to of Westminster, respectively specified in the Schedule hereunto be extended to annexed, are hereby (mutatis mutandis) extended to this Colony. this Colony. Preamble. Interpretation of Terms. "Administration." "Matters and Causes Testa mentary." "Common Form Business." Testamentary Jurisdiction to be exercised by the Supreme Court. 6 Probate of Wills and Letters of Administration. No. 8. of 1860. An Ordinance to amend the Law in relation to the Grant WHE HEREAS it is expedient to amend the Law in relation to the Grant and Revocation of Probates of Wills and Letters of Administration within the Colony of Hongkong :' Be it therefore enacted by His Excellency the Governor of Hongkong, with the Advice of the Legislative Council thereof, as follows: I. Has had its effect. II. In the Construction of this Ordinance unless the Context be inconsistent with the Meaning hereby assigned; "Will" shall comprehend "Testament" and all other Testamentary Instruments of which Probate may now be or might at any Time heretofore have been granted. "Administration" shall comprehend all Letters of Administration of the Effects of deceased Persons, whether with or without the Will annexed, and whether granted for general, special, or limited Purposes. "Matters and Causes Testamentary" shall comprehend all Matters and Causes relating to the Grant and Revocation of Probate of Wills or of Administration. "Common Form Business" shall mean the Business of obtaining Probate and Administration where there is no Contention as to the Right thereto, including the Passing of Probates and Administrations through the Court of Probate in contentious Cases when the Content is terminated, and all Business of a non-contentious Nature to be taken in the Court in Matters of Testacy and Intestacy, not being Proceedings in any Suit, and also the Business of lodging Caveats against the Grant of Probate or Administration. III. The voluntary and contentious Jurisdiction and Authority in relation to the granting or revoking Probate of Wills and Letters of Administration of the Effects of deceased Persons, together with full Authority to hear and determine all Questions relating to Matters and Causes Testamentary, shall belong to and be vested in and be exercised in the Name of Her Majesty by the Supreme Court of Hongkong which shall for the purposes of this Ordinance be deemed a Court of Probate and shall be a Court of Record, and shall have the same Powers, and its Grants and Orders shall have the same Effect, in Hongkong and in relation to the Personal Estate in Hongkong of deceased Persons, as the Supreme Court and its Grants and Orders respectively now have or hitherto have had in relation to Matters and Causes Testamentary and Effects of deceased Persons within the Jurisdiction of the said Supreme Court; and all Duties which are or have been imposed on or should be performed by the Supreme Court, in respect of Probates, Administrations, or Matters or Causes Testamentary shall be performed by the said Court under the Probate Jurisdiction hereby created: Provided that no Suits for Legacies, or Probate of Wills and Letters of Administration. or Suits for the Distribution of Residues, shall be entertained by the said Court in its Probate Jurisdiction. IV. No Officer or Clerk of the Supreme Court in its Probate Jurisdiction shall during the Time of his holding such Office directly or indirectly practise as an Advocate, Barrister, Proctor, Solicitor, or Attorney, or receive or participate in the Fees of any other Person so practising. V. The Judge shall cause a Seal to be made for the Court in its Probate Jurisdiction and may cause the same from Time to Time to be broken, altered, and renewed at his Discretion; and all Probates, Letters of Administration, Orders and other Instruments, and Exemplifications and Copies thereof, respectively, purporting to be sealed with such Seal shall be received in Evidence without further Proof thereof. No Officer under this Ordinance to act as Advocate, &c. Seal of Court to be provided. Power to ex amine Wit nesses. VI. The Court may require the Attendance of any Party in Person, or of any Person whom it may think fit to examine or cause to be examined in any Suit or other Proceedings in respect of Matters or Causes Testamentary, and may examine or cause to be examined upon Oath, Declaration or Affirmation, as the Case may require, Parties and Witnesses by Word of Mouth and may, either before or after or with or without such Examination cause them or any of them to be examined on Interrogatories, or receive their or any of their Affidavits, Declarations or solemn Affirmations, as the case may be: And the Court may by Writ require As to Producsuch Attendance, and order to be produced before itself or other- tion of Deeds, wise any Deeds, Evidences, or Writings, in the same Form, as nearly as may be as that in which a Writ of Subpoena ad testificandum or of Subpoena duces tecum, is now issued by the said Court in its Common Law Jurisdiction, and every Person disobeying any such Writ shall be considered as in Contempt of the Court and also be liable to forfeit a Sum not exceeding One Hundred Pounds. VII. The Court shall have the like Powers, Jurisdiction, and Authority for enforcing the Attendance of Persons required by it as aforesaid, and for punishing Persons failing, neglecting, or refusing to produce Deeds, Evidences, or Writings, or refusing to appear or to be sworn or make Affirmation or Declaration or to give Evidence, or guilty of Contempt, and generally for enforcing all Orders, Decrees, and Judgments made or given by the Court under this Ordinance and otherwise in relation to the Matters to be inquired into and done by or under the Orders of the Court under this Ordinance as are by Law vested in the Supreme Court for such Purposes in relation to any Suit or Matter depending in the Court in its Equitable or Common Law Jurisdiction. VIII. The Court may, on Motion or Petition, or otherwise, in a summary Way whether any Suit or other Proceeding shall or shall not be pending in the Court with respect to any Probate or Administration, order any Person to produce and bring into the Registry, or otherwise as the Court may direct, any Paper or Writing being or purporting to be Testamentary, which may be shown to be in the Possession or under the Control of such Person And if it be not shown that any such Paper or Writing &c. Power to en force Orders. order to produce any Instrument purporting to be Testamentary. Registrar, &c. to have Power to administer Oaths. Probate of Wills and Letters of Administration. is in the Possession or under the Control of such Person, but it shall appear that there are reasonable Grounds for believing that he has the Knowledge of any such Paper or Writing, the Court may direct such Person to attend for the Purpose of being ex• amined in open Court, or upon Interrogatories respecting the same, and such Person shall be bound to answer such Questions or Interrogatories, and, if so ordered, to produce and bring in such Paper or Writing, and shall be subject to the like Process of Contempt in case of Default in not attending or in not answering such Questions or Interrogatories, or not bringing in such Paper or Writing, as he would have been subject to in case he had been a Party to a Suit in the Court and had made such Default; and the Costs of any such Motion, Petition, or other Proceeding shall be in the Discretion of the Court. IX. The Registrar and any other Persons whom the Judge shall, under the Seal of the Court, from Time to Time appoint shall respectively have full Power to administer Oaths and Declarations and perform such other Duties in reference to Matters and Causes Testamentary as may be assigned to them from Time to Time by any Rules and Orders under this Ordinance and the Commissioners. Commissioners for taking Oaths in the said Court in its Common Law and Equitable Jurisdiction shall be Commissioners for taking Oaths and Declarations in the said Court in its Probate Jurisdiction. X. Affidavits, Declarations, or Affirmations of Persons residing in Foreign Parts, if sworn, declared, or affirmed before the Persons empowered to administer Oaths under the Act of the 6th Geo. IV. cap. 87, or under the Act of the 18th and 19th Vict. cap. 42, before any Foreign local Magistrate or other Person having Authority to administer an Oath in places where there are no such Persons as are mentioned in the said Acts, may be used in the said Court in its Probate Jurisdiction. XI. Affidavits, Declarations, and Affirmations sworn, made, and taken in any Place out of the Colony of Hongkong, under the Dominion of Her Majesty, before any Court, Judge, Notary Public, or Person lawfully authorized to administer Oaths in such Place, may be used in the said Court in its Probate Jurisdiction; and all Officers of the said Court 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. XII. If any Person forge the Signature of any Registrar or Commissioner for taking Oaths, or forge or counterfeit any Seal of the said Court in its Probate Jurisdiction, or forge or counterfeit any such Seal or Signature as in the last preceding Section is mentioned, or any Seal or Signature impressed, affixed, or subscribed under the Provisions of the said Act of the 6th Geo. IV. cap. 87, or the 18th and 19th Vict. cap. 42, to any Affidavit, Declaration, or Affirmation to be used in the said Court in its Probate Jurisdiction, or willingly use or concur in using any such forged or counterfeit Signature or Seal, or tender in Evidence any Probate of Wills and Letters of Administration. any Document as aforesaid with a false or counterfeit Signature or Seal, knowing the same Signature or Seal to be false or counterfeit, every such Person shall be guilty of Felony, and shall upon Conviction be liable to Penal Servitude for the Term of his Life or any Term not less than Seven Years, or to Imprisonment for any Term not exceeding Three Years with or without Hard Labour: 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, 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 the said Colony of Hongkong. XIII. The Practice of the said Court in its Probate Jurisdic- Practice of the tion shall, except where otherwise provided by this Ordinance or Court. by the Rules or Orders to be from Time to Time made under this Ordinance, be so far as the Circumstances of the Case will admit, according to the Practice heretofore prevailing in the said Court in its Ecclesiastical Jurisdiction. XIV. Subject to the Regulations established or to be established by such Rules and Orders as aforesaid, the Witnesses and where necessary the Parties, in all contentious Matters where their Attendance can be had, shall be examined orally by or before the Judge in open Court: Provided always, that, subject to any such Regulations as aforesaid the Parties shall be at Liberty to verify their respective Cases, in whole or in Part, by Affidavit; but so that the Deponent in every such Affidavit shall, on the Application of the opposite Party be subject to be cross-examined by or on Behalf of such opposite Party orally in open Court as aforesaid, and after such cross-examination may be re-examined orally in open Court as aforesaid by or on Behalf of the Party by whom such Affidavit was filed. XV. Provided, that when a Witness in any such Matter is out of the Jurisdiction of the Court, or when by reason of his Illness or otherwise, the Court shall not think fit to enforce the Attendance of the Witness in open Court, it shall be lawful for the Court to order a Commission to issue for the Examination of such Witness upon Interrogatories or otherwise, or if the Witness be within the Jurisdiction of the Court, to order the Examination of such Witness upon Interrogatories or otherwise, before any Officer of the said Court, or other Person to be named in such Order for the Purpose. [Residue of Section repealed.] XVI. The Rules of Evidence observed in the Supreme Court in its Common Law Jurisdiction shall be applicable to and ob Mode of taking Contentious Matters. Court may issue Commissions or give Orders for Examination of Witnesses abroad or who are unable to attend. Rules of Evi dence to be ob served as at served Common Law. |