The only mode in which the decision of the county court judge can be reviewed is by appeal under the above section upon points of law and evidence. Upon questions of fact, the decision of the county court is final (h). PART VI. for probate, county court, Sect. 59. "It shall not be obligatory on any person to apply for pro- Not ol ligabate or administration to any district registry or through any county tory to apply court, but in every case such application may be made through the prin- &c. to district cipal registry of the Court of Probate, wherever the testator or intestate registries or may, at the time of his death, have had his fixed place of abode: Provided, that where in any contentious matter arising out of any such application it is shown to the Court of Probate that the state of the property and place of abode of the deceased were such as to give contentious jurisdiction to the judge of a county court, the Court of Probate may send the cause to such county court, and the judge thereof shall proceed therein as if such application and cause had been made to and arisen in his court in the first instance" (i). For the particular procedure and practice of the county courts, so far as the above provisions or the County Court Rules (post, p. 194) do not extend, the Probate Acts must be referred to, and also the Rules of the Court of Probate must be followed (j). Where a cause is sent to the county court, the Court of Probate which sends it cannot give any directions as to the mode in which the cause shall be tried. Application for a trial by jury, for example, must be made to the judge of the county court (k); and the decision of the county court can only be reviewed by appeal under sect. 58, for there is no distinction, under that section, between cases originally instituted in the county court, and causes sent to that court under sect. 59. The Court of Probate, therefore, cannot inquire whether the verdict in the county court was against evidence, or order a re-investigation of a question of fact already decided (1); nor can the Probate Court, after the decree in the county court, make any order confirming it; or order the payment by the unsuccessful party of costs incurred in the Probate Court before the transfer (m). Any application as to such costs must be made, therefore, to the Probate Court before the transfer. (h) Lealley v. Veryard, 35 L. J. (N. S.) Prob. & M. 127; S. C. nom. Zealley v. Veryard, Law Rep., 1 Prob. & Div. 195. (i) "The Court of Probate Act, 1858" (21 & 22 Vict. c. 95), s. 12, enacts, that "The Court of Probate Act, 1857," section 59, "shall, so far as the county courts or a judge thereof are concerned, apply to an application for the revocation of a grant of probate or administration as well as to an application for any such grant." (j) Considering the few probate D. VOL. II. cases taken in or sent to the county (k) Norris v. Allen, 2 S. & Tr. (1) Lealley v. Veryard, 35 L. J. (N. S.) Prob. & M. 127; Thomas v. Crowther, 2 Sw. & Tr. 561, cannot be relied upon on this point. (m) Macleur v. Macleur, Law Rep., 1 Prob. & Div. 604; 37 L. J. (N. S.) Prob. & M. 68. but may in every case be made to Court of Probate. Court of Probate must be followed (j). 194 PART VI. Rules and orders for regulating of county courts under the acts to be made by the judges now having Rules and Orders. "The Court of Probate Act, 1857," enacts that Sect. 60. "For regulating the procedure and practice of the county courts, and the judges, registrars, and officers thereof, in relation to their the procedure jurisdiction and proceedings under this act, rules and orders may be from time to time framed, amended and certified by the county court judges appointed for the time being to frame rules and orders for regulating the practice of the county courts under the act 19 & 20 Vict. c. 108, and shall be subject to be allowed, or disallowed or altered, and shall be authority for in force from the day named for that purpose by the Lord Chancellor, as in the said act is provided in relation to other rules and orders regulating the practice of the same courts (n); and for establishing rules and orders to be in force when this act comes into operation, the power given by this enactment shall be exercised as soon as conveniently may be after the passing of this act." the like purрове. Power to make rules and orders and frame "The Court of Probate Act, 1858 " (21 & 22 Vict. c. 95), enacts that Sect. 13. "The power and authority to make rules and orders for regulating the proceedings of the county courts shall extend and be applicable to all proceedings in the county courts under this act, and also to framing a scale of costs and charges to be paid to counsel, proctors, for the county solicitors and attorneys, in respect of proceedings in county courts, under the said Court of Probate Act or this act." scales of fees courts. Under the powers given for that purpose as above mentioned, the following rules and orders for regulating the practice of the county courts came into force on the 4th of February, 1858:— "1. Any person desirous of taking proceedings in any county court under the statute 20 & 21 Vict. c. 77, for amending the law relating to probates and letters of administration in England, shall lodge with the registrar of the court having jurisdiction in the matter an application in writing according to form (A) annexed, duly stamped with the proper duty thereon. "2. Where any person shall have lodged a caveat against the grant of probate or letters of administration, and proceedings are proposed to be taken in a county court, the person who shall have applied for the probate or letters of administration shall be deemed the plaintiff in the proceedings, and the person who shall have lodged the caveat shall be deemed the defendant. "3. The party making application to a county court for the revocation of probate or letters of administration shall be deemed the plaintiff in the proceedings, and the party against whom the application is made shall be deemed the defendant. "4. Where an application shall be made to a county court for the grant or revocation of probate or letters of administration, the person making the application shall produce to the registrar a certified copy of the affidavit made by the party who shall have applied for or obtained the probate or letters of administration: and thereupon, if, according to the statements in the affidavit, the deceased had, at the time of his death, (n) For the general power to frame rules and orders under the 19 & 20 Vict. c. 108, see ante, Vol. I. p. 58. his fixed place of abode within the district of such court, and the state of PART VI. the property of the testator or intestate was such as to give jurisdiction to the judge of the county court, the registrar shall issue a notice to the defendant according to form (B) annexed, and deliver a notice, according to such form, then and there to the plaintiff or his agent. "5. The above-mentioned notice shall be issued ten clear days before the day on which the judge shall proceed to make a decree in the matter. "6. Notices shall be served by a bailiff of the court, by his delivering the same to some person at the respective places of residence of the parties, as mentioned in the application for proceedings to be taken. "7. The registrar of the county court, at the time that he issues the notices in proceedings for the revocation of the grant of probate or letters of administration, shall give notice by post, according to form (C.) annexed, to the district registrar by whom the probate or letters of administration has been granted, to produce the original will or other necessary documents at the county court at which the matter of the application will be considered. 8. The certificate to be given by the registrar of a county court under sect. 55 of 20 & 21 Vict. c. 77, shall be according to form (D.) annexed; and on or before the day mentioned in the notice the plaintiff shall deliver to the registrar such form, stamped with the proper duty thereon, and the cause shall not proceed until such form duly stamped is so delivered: provided, that the defendant may procure and deliver such form duly stamped if the plaintiff shall have neglected to deliver such form so stamped. "9. Upon the day mentioned in the notice the judge, whether both parties are then before him or not, may proceed to consider the matter of the application, and to make a decree thereon, or he may adjourn the proceedings, from time to time, as he may think fit. "10. The decree shall be according to form (E.) annexed, and a copy of such decree shall be sent by post to the plaintiff and defendant. 11. Where application for probate or letters of administration has been made at the principal registry, and any contentious matter shall arise out of such application, and the judge of the Court of Probate shall send the cause to a county court, the registrar, upon the receipt of such cause, shall forthwith issue a notice, according to form (B.) in the schedule, both to the plaintiff and defendant, without any application being made to the court by the plaintiff, "12. In proceedings for which rules and orders are not hereby provided, the rules and practice of the Court of Probate shall be followed so far as they are applicable. "13. The enactments, practice and forms in force and used in the county courts shall, subject to the foregoing rules and orders, be adopted with reference to proceedings in the county courts in matters of probate or letters of administration, so far as the same are applicable mutatis mutandis." FORM A. Application to a County Court for Proceedings to be taken under the Act 20 & 21 Vict. c. 77, for amending the Law relating to Probates and Letters of Administration in England. of I, A. B., of [or C. D. proctor, solicitor or attorney of A. B. ], do hereby apply to the judge of the above court for a decree PART VI. to be made by him, according to the provisions of the above act, for the ]. at the hour of on the Take notice that at a county court to be holden at day of in the noon, the judge of this court will proceed to make a decree for the grant [or revocation] of probate of the will or letters of administration in the goods] of [here insert name and address of testator or intestate], unless cause be then shown to the contrary: and you are hereby informed, that if you do not attend on that day, the judge may proceed to make such decree in your absence. To the plaintiff [or defendant]. 187. Registrar of the court. Hours of attendance at the office of the registrar [place of office] from ten till four, except on when the office will be closed at one. Whereas an application has been made to this court to revoke the grant of probate of the will [or letters of administration granted by you in the goods] of [here insert the name and address of the testator or intestate]; and whereas the matter of such application will be considered by the judge of this court on the in the day of at the hour of noon: I, therefore, request that you will cause to be produced before the judge on that day [the will (n) and] all documents which are in your possession relating to the matter. Dated this day of 187 Registrar of the court. Hours of attendance at the office of the registrar [place of office] from ten till four, except on when the office will be closed at one. (n) To be left out where administration without will annexed has been granted. FORM D. Certificate of a Registrar of a County Court, under Sect. 55 of 20 & 21 Vict. c. 77. PART VI. I, A. B., registrar of the above court, do hereby certify, that the following decree was made in the above cause. [Here set out the decree.] Certified under the seal of the court, this day of 187 Upon the hearing of the application in this cause, at a court holden this day, it is decreed as follows: [Here set out the decree.] for the 's And it is ordered that the day of 187 Given under the seal of this court, this Registrar. Hours of attendance at the office of the registrar [ place of office] from ten till four, except on when the office will be closed at one. [As the above forms will seldom be required, they are not to be printed, but are to be written on foolscap paper. § 3.-FEES AND COSTS. Fees.]-The fees to be taken by officers of the county courts in respect of business under the probate acts are the same fees as in the case of a plaint for a sum of 201. (o). See the Table of Fees, ante, Vol. I. p. 18, et seq. A fee of Is. is expressly provided, by the table of Probate Court fees, to be taken for "Filing certificate of county court judge" (p). (0) This direction as to county court fees does not appear to be inIcluded in the general repeal in 1862 of previous tables of fees. (p) See table of "Fees to be taken in court and contentious business in the Court of Probate," dated 30th July, 1862. |