PART III.

of the attorney or other person who has been able to certify to the fact, and act according to his discretion; for the act does not require him to be satisfied in any particular manner on the point, nor direct him to examine the woman herself on the point, as it does with regard to her acting voluntarily or not. The fact, however, as to age must be positively stated. In a case where the certificate expressed only a belief on the point, it was not allowed to be filed (h).

The attorney should forthwith file the certificate of the judge, and his own affidavit verifying the signature to the certificate (i), at the office of the registrar, at Lancasterplace, Waterloo Bridge; for should a lunar month be allowed to elapse without its being filed, an order of a judge must be obtained to authorize the registrar to receive it.

The certificate and affidavit are examined most carefully by the registrar, and if not found correct they are to be returned by him. The certificate can only then be amended by an order of the court. A memorandum of the receipt of the certificate and affidavit will be given at the registrar's office, which memorandum must be given up, upon application for the office copy of the certificate. This copy is to be received as evidence of the acknowledgment of the deed to which it refers.

(h) Re Coventry, 8 Scott, 147.

(i) 3 & 4 Will. 4, c. 70, s. 85.

Jurisdiction.]-The contentious jurisdiction of the Court Jurisdiction. of Probate is given to the county courts by the 20 & 21 Vict. c. 77, as amended by the 21 & 22 Vict. c. 95, s. 10. Where it appears by affidavit, to the satisfaction of a registrar of the principal registry, that the testator or intestate in respect of whose estate a grant or revocation of a grant of probate or letters of administration is applied for, had at the time of his death his fixed place of abode in one of the districts specified in Schedule (A.) to the Court of Probate Act, and that the personal estate in respect of which the probate or letters of administration have been granted (exclusive of what the deceased was possessed of or entitled to as a trustee, and not beneficially, but without deducting anything on account of the debts due and owing from the deceased), is under the value of 2007., and that the deceased at the time of his death was not seised or entitled beneficially of or to any real estate of the value of 3007. or upwards, the judge of the county court having jurisdiction in the place in which the deceased had, at the time of his death, his fixed place of abode,

PART III.

shall have the contentious jurisdiction and authority of the Court of Probate in respect of questions as to the grant and revocation of probate and letters of administration, in case there is any contention in relation thereto (a).

The statements contained in this affidavit as to the place of abode and state of the property of the testator or intestate are conclusive for the purpose of giving jurisdiction to the county court, and any grant of probate or letters of administration made in compliance with the decree of the judge is not liable to be recalled, revoked, or otherwise impeached, by reason that the testator or intestate had no fixed place of abode within the jurisdiction of such judge, or within any of the districts mentioned in Schedule (A.) of the act at the time of his death, or that the state of the property was not such as to give jurisdiction to the county court; but the judge upon its being shown to him that the statements in the affidavit as to the state of the property of the deceased and his abode at the time of his death are not correct, or, if correct, are not such as to authorize the judge to exercise the contentious jurisdiction, must stay the proceedings, leaving the party to apply to the Court of Probate in the matter, and may make such order as to the costs of the proceedings before him as he may think just (b).

Where application for the grant or revocation of a grant of probate or letters of administration is made through the principal registry, the judge of the Court of Probate, if any contentious matter arise out of the application, and the state of the property and the place of abode of the deceased be such as to give contentious jurisdiction to the judge of a county court, may send the cause to such court, and the judge thereof may proceed therein as if the application and cause had been made to and arisen in his court in the first instance (c). Where a cause is thus sent it becomes for all purposes a county court case, and the Probate Court has no longer any control over it except by way of appeal. The judge of the Probate Court cannot therefore direct a new trial (d), nor make any order

(a) 21 & 22 Vict. c. 95, s. 10. The Probate Court will leave it to the judge of the county court to decide whether the case shall be tried by him with or without a jury. Norris v. Allen, 2 S. & Tr. 601; S.C., 32 L. J., Prob. Mat. & Adm. 3.

(b) 20 & 21 Vict. c. 77, s. 57.

(c) Ib. s. 59, as amended by 21 & 22 Vict. c. 95, s. 12. Norris v. Allen, ubi supra.

(d) Zealley v. Veryard, L. R., 1 P. & D. 195.

even as to costs incurred in the Probate Court before removal (e).

If a district registrar is doubtful whether probate or letters of administration should be granted, or if any question arise in relation to the grant, or application for the grant, he is to transmit a statement of the matters in question to the registrars of the Court of Probate. These officers must on this obtain the directions of the judge in the matter, who may direct the district registrar to proceed according to his instructions, or may forbid any further proceedings by the district registrar, leaving the party to apply to the Court of Probate for the grant, or to a county court, if the case be within its jurisdiction (f).

The judge of the county court, before whom any disputed question is raised relating to matters and causes testamentary under the act, has, subject to any rules or orders made under the act, all the jurisdiction, power and authority to decide the same and enforce judgment therein, and to enforce orders in relation thereto, as he has in an ordinary action brought before him (g).

All business not included in the expression 66 common form business,” as interpreted in the act, except the warning of caveats, is contentious business (h).

CHAP. XII.

Rules of Practice.]-The county court judges ap- Rules of pointed under the 19 & 20 Vict. c. 108, s. 32, to frame practice. rules and orders for regulating the practice of the county courts, may frame, and from time to time amend rules and orders for regulating their procedure and practice in proceedings under the act. These must be certified under the hands of such judges, or any three or more of them, to the lord chancellor, who may allow, disallow, or alter them, and, when allowed, they are to be in force in every county court from a day to be named by the lord chancellor (i).

They must also be laid before both houses of parliament within one month after the making of them, or, if parliament is not sitting, within one month from the commencement of the then next sessions (j). Under this power

(e) Macleur v. Macleur, L. R.,

1 P. & D. 604; S. C. 38 L. J., P. & M. 68.

(f) 20 & 21 Vict. c. 77, s. 50. Ib. s. 56.

(h) Ib. s. 2; and Contentious Rules of the Court of Probate, No. 3.

(i) Ib. s. 60.
(j) Ib. s. 119.

PART III.

Forms.

Affidavit.

rules have been framed, which are given in the Appendix, p. 780.

The rules and practice of the Court of Probate, where rules have not been made for proceedings in the county courts, are to be followed so far as they are applicable (k), and generally the practice and forms of the county courts are to be adopted so far as they are applicable, mutatis mutandis (1).

Forms.]-Forms are annexed to the county court rules, which are to be followed as nearly as the circumstances of each case will allow (m).

The Affidavit.]-The affidavit necessary to be made to give the judge of a county court jurisdiction in contentious matters, must show that the deceased had at the time of his death his fixed place of abode in one of the districts set forth in Schedule (A.) to the Court of Probate Act, and that the personal estate in respect of which probate or letters of administration are to be or have been granted, was at the time of his death under the value of 2007. This amount is, however, exclusive of any property the deceased may have been possessed of or entitled to as a trustee and not beneficially, but it must be inclusive of debts due and owing from the deceased.

The affidavit must also show that the deceased was not at the time of his death seised or entitled beneficially of or to any real estate of the value of 300l. or upwards.

Unless one of the registrars of the principal registry is satisfied that the statements in the affidavit are correct, the county court has no jurisdiction.

The affidavit must be taken to the office of the principal registry of the Court of Probate in Doctors' Commons, London, for submission to one of the registrars, by whom, if satisfied therewith, a minute to that effect is entered on the books of the court, and an office copy of the minute is given to the party, who must file it in the county court having jurisdiction in the matter.

The fees payable in the principal registry are 2s. 6d. for filing the affidavit, 2s. 6d. for the entry of the minute, and 2s. 6d. for the office copy thereof.