124
No Officer under this Ordinance to act as Advocate, &c.
Seal of Court to be provided.
Power to examine witnesses.
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 hitherto have had in relation to Matters and Causes Testamentary and Effects of dece ed 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 Pro- bates, 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 Suits for the Distribution of Residues, shall be entertained by the said Court in its Probate Jurisdiction.
IV. No Officer or Clerk of the said Supreme Court in its Probate Jurisdiction shall during the Time of his holding such Office directly or indirectly practice 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 said Court in its Probate Ju- risdiction and may cause the same from Time to Time to be broken, altered, and renewed at his Discretion; and all Probates, Letters of Adininistration, Orders and other Instru- ments, and Exemplifications and Copies thereof, respectively, purporting to be sealed with such Seal shall be received in evidence without further Proof thereof.
VI. The said 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 Ex- amination cause them or any of then to be examined on Interrogatories, or receive their or any of their Affidavits, Declarations or solemu Affirmations, as the case may be: And the Court may by Writ require such Attendance, and order to be produced before itself or As to Production of otherwise 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 Subpœna duces tecum, is now is- sued 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 for- feit a Sum not exceeding One Hundred Pounds.
Deeds, &c.
Orders.
Power to enforce VII. The said Court shall have the like Powers, Jurisdiction, and Authority for enforcing the Attendance of Persons required by it as aforesaid, and for punishing Per- sons 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 Mat- ters to be inquired into and done by or under the Orders of the Court under this Ordinance as are by Law vested in the said Supreme Court for such Purposes in relation to any Suit or Matter depending in the said Court in its Equitable or Common Law Jurisdiction.
Order to produce
any Instrument pur-
mentary,
VIII. The said Court may, on Motion or Petition, or otherwise, in a summary Way porting to be Testa- 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 pur- porting 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 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 Writ- ing, the Court may direct such Person to attend for the Purpose of being examined 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
such any Motion, Petition, or other Proceeding shall be in the Discretion of the Court.
Registrar, &c. to have Power to admi- nister Oaths.
Commissionera.
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 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.
whom to be made
eign Parts.
X. In Cases where it is necessary to obtain Affidavits, Declarations, or Affirmations Afidavits, &c. before to be used in the said Court in its Probate Jurisdiction from Persons residing in Foreign when Persons making Parts the same may be sworn, declared, or affirmed before the Persons empowered to them reside in For- administer Oaths under the Act of the 6th Geo. IV. c. 87 or under the Act of the 18th and 19th Vict. c. 42: 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 Au- thority to administer an Oath.
BeitishDominions be-
XI. Affidavits, Declarations, and Affirmations to be used in the said Court in its Affidavits made in Probate Jurisdiction may be sworn, made, and taken in any Place out of the Colony of fore whom to be sworn. Hongkong under the Dominion of Her Majesty before any Court, Judge, Notary Public,
or Person lawfully authorised to administer Oaths in such Place: 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.
or counterfeiting Seals
XII. If any Person forge the Signature of any Registrar or Commissioner for taking Penalty on orgin Oaths or forge or counterfeit any Seal of the said Court in its Probate Jurisdiction or or Signature. forge or counterfeit any such Seal or Signature as in the last preceding Section is men- tioned 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 Juris- diction or willingly use or concur in using any such forged or counterfeit Signature or Seal or tender in Evidence any Document as aforesaid with a false or counterfeit Signa- ture 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 Jurisdiction shall, except where Practice of the Court. otherwise provided by this Ordinance or by the Rules or Orders to be from Time to Tine 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 Ju- risdiction.
Matters.
XIV. Subject to the Regulations established or to be established by such Rules Mode of taking Evi- and Orders as aforesaid, the Witnesses and where necessary the Parties, in all conten-dence in Contentions tious 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 appli- cation 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.
orders for Examina-
broad or who are un-
XV. Provided, that when a Witness in any such Matter is out of the Jurisdiction Court may issue of the Court, or when by reason of his Illness or otherwise, the Court shall not think fit Commissions or give to enforce the Attendance of the Witness in open Court, it shall be lawful for the Court tion of witnesses a- to order a Commission to issue for the Examination of such Witness upon Interrogatorics able to attend. 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 and all the Powers given to the Courts of Law at Westminster by the Acts 13th Geo. III, cap. 63,
ug.