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16. After the issue of the writ of foreign attachment (but subject to the provisions of the last preceding rule), the plaintiff may, upon such day after the return of the writ of attachment, as the Court shall appoint, proceed to establish his claim as in ordinary suits in which Proceedings there has been due service of the writ of summons, and leave has been after issue of obtained to proceed ex parte.
17. Upon the hearing, the Court shall proceed to inquire and Examination determine whether in fact the plaintiff's case is within the provisions herein contained relating to foreign attachment, and whether the plaintiff has established his claim, and shall pronounce judgment accordingly; and if the plaintiff shall obtain a judgment, the Court may, at the same or any subsequent sitting, examine, or permit the plaintiff to examine, the garnishee and any other persons, and determine what property, moveable or immoveable, is subject to attachment under the writ issued.
18. The Court may, of its own motion, or at the instance of any Power to person interested in the inquiry, summon any person whom it may summon any think necessary and examine him in relation to such property, and person as a may require the garnishee, as well as the person summoned as aforesaid, to produce all deeds and documents in his possession or power relating to such property.
19. If the plaintiff shall obtain judgment, the Court may, at the Proceedings time of pronouncing the decree in favour of the plaintiff, or at any on judgment. subsequent sitting, order that execution do issue against all or any part of the property attached which the Court shall have declared to be liable to satisfy the plaintiff's claim, and all the provisions of this schedule relating to the execution of decrees in ordinary suits shall apply to execution so ordered against the said property.
20. If the plaintiff shall fail to obtain judgment, the Court Dissolution shall thereupon dissolve the writ of foreign attachment issued at his of writ.
21. Whenever there shall be two or more adverse claimants to any Attachment goods laden on board of any ship, and such ship shall be attached in a of ships. suit against the shipowner for the non-delivery of such goods, the Court may, in its discretion, on the application of the master, or of the agent of the shipowner, stay the proceedings upon such terms as the Court shall deem reasonable, and order such goods to be landed and warehoused in custodia legis without prejudice to the master's lien thereon, and may dissolve the attachment against the ship, and may make such orders as may be necessary for the determination of the rights of such adverse claimants upon such terms, as to security and other matters, as may seem just.
22. Whenever there shall be several claimants to any property Claims to attached or to any interest therein, the Court may in its discretion property summon before it all the claimants and may make such orders for the attached. ascertaining of their respective rights and for the custody of the property in the meanwhile as it shall, in its discretion, think fit either under this provision or the provisions of this schedule relating to adverse claims and to claims to attached property.
23. The Court may stay proceedings in any suit commenced Stay of against a garnishee in respect of property attached in his hands, upon proceedings such terms as it shall think fit. against garnishee.
RULES OF CIVIL PROCEDURE.
defend before judgment.
property attached on security.
Suit may be re-opened within two years after judgment.
The reversal of judgment not to affect purchasers.
for granting probate and administration.
24. The Court at any time before judgment, upon being satisfied by affidavit or otherwise that the defendant has a substantial ground of defence, either wholly or in part, to the suit on the merits, may give leave to the defendant to defend the suit, without prejudice to the attachment under the writ.
25. The defendant, at any time before any property attached in the suit shall have been sold in satisfaction of the plaintiff's claim, may apply to the Court upon notice of motion for an order to dissolve the attachment under the writ as to the whole or any part of the property attached, upon security being given to answer the plaintiff's claim, and the Court may make such order, either absolutely or upon such terms as it may deem reasonable, and in the meanwhile may stay or postpone any sale.
The defendant may at any time within two years from the date of the judgment, notwithstanding that the property attached, or any part thereof, shall have been sold in satisfaction of the plaintiff's claim, apply to the Court upon notice of motion for an order to set aside the judgment and for the re-hearing of the suit and for leave to defend the same; and if it shall appear to the satisfaction of the Court that the defendant had no notice or knowledge of the suit, and could not reasonably have made an earlier application to the Court, and that he had at the time of the obtaining of the judgment and still has a substantial ground of defence, either wholly or in part, to the suit on the merits, it shall be lawful for the Court to grant such order upon such terms as it may deem reasonable.
27. The reversal or setting aside of a judgment, or the dissolving or setting aside of any writ of foreign attachment, or any subsequent proceedings, shall not affect the title of any bonâ fide purchaser for valuable consideration of any property sold in satisfaction of the plaintiff's claim.
II. WILLS AND EFFECTS OF DECEASED PERSONS.
PROBATE AND ADMINISTRATION.
1. Where any person dies within the jurisdiction of the Supreme Court, the Divisional Court of the Province where the deceased had at the time of his death his fixed place of abode (and if there are more such Courts than one, the Court having its ordinary place of sitting nearest to such place of abode) shall have jurisdiction for the purpose of granting probate of the will and administration of the estate of the deceased person wheresoever situated within the jurisdiction of the Court. Such Divisional Court may request any other Court to take measures for the interim preservation of the property of the deceased within its jurisdiction, for discovery or preservation of the will of the deceased, or for other purposes, and every Court shall carry out any such request as far as practicable.
2. Any Court within whose particular jurisdiction a deceased person may have left property shall, when the circumstances of the case appear so to require, or on the request of the Divisional Court having jurisdiction as aforesaid, forthwith on the death of such Preservation deceased person, or as soon after as may be, appoint and authorize an officer of Court, or some other fit person, to take possession of his property within its jurisdiction, or put it under seal and so keep it until it can be dealt with according to law, and shall report its proceeding to the said Divisional Court, with such information respecting any property of the deceased situated elsewhere within the jurisdiction of the Supreme Court as it shall have obtained.
RULES OF CIVIL PROCEDURE.
3. If any person other than the person named executor or adminis- Unauthorised trator, or an officer of the Court or person authorized by the Court, persons intermeddling takes possession of and administers or otherwise deals with the property with of any person dying within the jurisdiction of the Court, he shall property. besides the other liabilities he may incur, be liable to such fine not exceeding £100 as the Divisional Court within whose jurisdiction the property so taken possession of or dealt with is situated, having regard to the condition of the person so interfering with the property, and the other circumstances of the case, may think fit to impose.
4. Any person having in his possession or under his control any Production of paper or writing of any person lying within the jurisdiction of the testamentary Court, being or purporting to be testamentary, shall forthwith bring the original to the Court within whose jurisdiction such person is resident, or to the Court of the deceased's domicile, and deposit it there. If any person fails to do so for fourteen days after having had knowledge of the death of the deceased, he shall be liable to such fine not exceeding £100 as the Divisional Court of the Province where the person so in default is resident, having regard to the condition of such. person so in default, and the other circumstances of the case, thinks fit to impose.
5. Where it appears that any paper of the deceased, being or pur- Court may porting to be testamentary, is in the possession of, or under the control order production. of any person, any Court having jurisdiction where such person is resident may in a summary way, whether a suit or proceeding respecting probate or administration is pending or not, order him to produce the paper and bring it into Court.
6. Where it appears that there are reasonable grounds for Examination believing that any person has knowledge of any paper being or pur- testamentary porting to be testamentary (although it is not shown that the paper is papers. in his possession or under his control), any Court having jurisdiction where such person is resident or the Court of the deceased person's domicile, may in a summary way, whether a suit or proceeding for probate or administration is pending or not, order that he be examined respecting the same in Court, or on interrogatories, and that he do attend for that purpose, and after examination that he do produce the paper and bring it into Court.
2. Probate or Administration in general.
7. The Court may of its own motion, or on the application of any Notice to person claiming an interest under a will, give notice to the executors executors to (if any) therein named, to come in and prove the will, or to renounce
come in and prove.
RULES OF CIVIL PROCEDURE.
Liability of executor neglecting to apply for probate.
Grant by Divisional Court: applications to commissioners.
Evidence of residence.
Value of property.
Notice to prohibit grant.
probate, and they, or some or one of them, shall within fourteen days after notice, come in and prove or renounce accordingly.
8. If any person named executor in the will of the deceased takes possession of and administers or otherwise deals with any part of the property of the deceased, and does not apply for probate within one month after the death, or after the termination of any suit or dispute respecting probate or administration, he may, independently of any other liability, be deemed guilty of a contempt of Court, and shall be liable to such fine, not exceeding £50, as the Court of domicile thinks fit to impose.
Effect of notice.
9. In any case the grant of probate or administration shall be made by the aforesaid Divisional Court of the Province where the deceased had, at the time of his death, his fixed place of abode; but where such fixed place of abode was situated in the District of a District Commissioner, the application for the grant may be made to such Commissioner, and he shall take the evidence and report thereon to the Divisional Court.
10. A District Commissioner, before proceeding in any application, shall ascertain that the deceased had, at the time of his death, his fixed place of abode in his District, and shall not for this purpose, unless he shall be satisfied therewith, confine himself to the evidence offered by the applicant.
11. The Court shall require evidence in addition to that offered by the applicant, of the identity of the deceased or of the applicant, where additional evidence in that behalf seems to the Court necessary or desirable.
12. The Court shall ascertain the value of the property of the deceased as correctly as circumstances allow.
13. In no case shall the Court issue probate or letters of administration until all inquiries which the Court sees fit to institute have been answered to its satisfaction.
The Court shall, however, afford as great facility for the obtaining of probate or administration as is consistent with due regard to the prevention of error and fraud.
14. A notice to prohibit a grant of probate or administration may be filed in any Court.
Immediately on such notice being filed in a Divisional Court, a copy thereof shall be sent to the Court of the District (if any) in which Forms 74, 75. it was alleged the deceased was resident at his death, and to any other Court to which it appears to the Divisional Court expedient to send a copy.
Immediately on such a notice being filed in the Court of a District Commissioner, he shall send a copy thereof to the Divisional Court of the Province in which it is known or alleged the deceased had, at his death, his place of abode.
15. The notice shall remain in force three months only from the day of filing, but it may be renewed from time to time. The notice shall not affect a grant made on the day on which the notice is filed or on which a copy thereof is received, as the case may be. The person filing the notice shall be warned by a warning in writing, delivered at the place mentioned in the notice as his address.
16. Notices in the nature of citations shall be given in such manner as the Court directs.
RULES OF CIVIL PROCEDURE.
17. Suits respecting probate or administration shall be instituted · and carried on as nearly as may be in the like manner as suits in Citations. respect of ordinary claims.
3. Custody of Wills.
18. Any person may, in his lifetime, deposit for safe custody in the Supreme Court his own will, sealed up under his own seal and the
seal of the Court.
Testator may deposit will.
19. Every original will, of which probate or administration Custody of with will annexed is granted, shall be filed and kept in the registry wills of which of the Supreme Court, in such manner as to secure at once the due granted. preservation and convenient inspection of the same. A copy of every such will, and of the probate or administration, shall be preserved in a book kept for that purpose in the registry.
20. No original will shall be delivered out for any purpose without the direction in writing of the Court where the will is filed.
given out without order of
An exemplification of the probate or administration with the Court. will annexed may be obtained from the Supreme Court.
4. Probate or Administration with Will annexed.*
Forms 57, 58, 60, 61, 63, 73,
21. On receiving an application for probate or for administration Examination with will annexed, the Court shall inspect the will, and see whether of will as to it appears to be signed by the testator, or by some other person in his presence and by his direction, and to be subscribed by two witnesses according to the enactments relative thereto, and shall not proceed further if the will does not appear to be so signed and subscribed.
If the will appears to be so signed and subscribed, the Court shall then refer to the attestation clause (if any), and consider whether the wording thereof states the will to have been, in fact, executed in accordance with those enactments.
22. If there is no attestation clause, or if the attestation clause is Proof of insufficient, the Court shall require an affidavit from at least one of the subscribing witnessess, if either of them is living, to prove that attestation the will was, in fact, executed in accordance with those enactments.
The affidavit shall be engrossed and form part of the probate, so Form 56. that the probate may be a complete document on the face of it.
23. If on perusal of the affidavit it appears that the will was Where will not, in fact, executed in accordance with those enactments, the Court not executed shall refuse probate.
according to law.
24. If both the subscribing witnesses are dead, or if from other Evidence on circumstances such an affidavit cannot be obtained from either of them, failure of resort for such an affidavit shall be had to other persons (if any) attesting present at the execution of the will; but if no such affidavit can be obtained, proof shall be required of that fact, and of the handwriting
* As to wills of constables see No. 4 of 1879.