Sect. 261 applies to any document "being or purporting to be testamentary, which may be shown to be in the possession or under the control of such person," and whether a suit be pending or not. The course usually adopted under this section is to order interrogatories 2 to be administered, and if they are not answered satisfactorily to order attendance for examination. If that is found to be insufficient, more stringent means are employed in the form of a writ for attachment, but this writ is seldom issued except in cases of extreme necessity, and when no other available means will suffice. Usually, after it has issued, it is ordered to lie in the registry for a fortnight, or some other convenient time, during which notice of its issue is given to the party in contempt, who, till the allotted interval expires, has a locus pænitentiæ, and may still escape the exceedingly unpleasant penalties of contempt.3 Subpoenas are issued both in non-contentious and contentious proceedings, and from the principal registry only. for enforcing all orders, decrees, Sect. 26, "The Court of Pro- 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 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 any such motion, petition, or other proceeding shall be in the discretion of the court." 2 For precedent, see Appendix. 3 Parkinson v. Thornton, post. See r. 79, D. R., Non-C. B., post, CITATION, p. 339. may issue By the 23rd section of the Probate Act of 1858, the Registrars power to issue subpanas to bring in testamentary papers them as already conferred upon the court, is also conferred on the regards principal registrars, with like penalties for contempt. papers only. The powers of the court to enforce attendance for exa- This power is mination are not allowed to be exercised in cases where not lightly there is no necessity for it. exercised. Attesting witnesses, having received an informal notice Examples. to attend at a solicitor's office for examination touching the will they had attested, on pain of compulsory appearance in London at their own expense, declined attendance, except in obedience to a subpoena of the Court of Probate, whereupon, with the same object, an order of the court was sought, directing their attendance at the court. The order was refused, as without precedent, and unnecessary. The object here was to satisfy the plaintiff whether she should oppose the will. stead of putting the parties to the proof of the will, and giving notice that she only intended to cross-examine the attesting witnesses in open court, she proposed that there should be a preliminary inquiry, so that, if their answers were unsatisfactory, she might then dispute the will. It was clear to the court from the affidavits that the witnesses had refused to give information as to the nature of their evidence.1 In An attesting witness must, however, when called upon to do so, give evidence relating to the will. "He here refuses," said the President, "to do what he is put in a position to do if requisite, and files no affidavit showing his reasons for refusing. Failing a satisfactory affidavit, he must appear at the principal registry upon his subpœna in a fortnight.2 All examinations of persons under these sections must The examina. be either in open court, or by interrogatories. They can 70. 1 Evans v. Jones, 36 L. J., Prob. 2 See C. P. Act, 1857, s. 24, ante, p. 320; Edmunds, MS. tion must be in open court, or by inter- not, for instance, be taken before district registrars, as the rogatories. statute gives no power for such a course.1 A writ of attachment is not granted in the first instance. Alteration of the procedure for attach ment under the Judicature Acts. Proceedings ance. A subpoena had been personally served upon an individual to bring in a testamentary paper under this section, and had been disobeyed, whereupon the court was moved for an attachment. This, however, was refused, as above pointed out, in the first instance, as there might be some misapprehension, and the party might not have the will in her possession. An order was then made for her personal attendance in a week.2 A person being served with a subpœna in 1875, under sect. 26 of the Court of Probate Act of 1857, failed to comply with it, and thereupon a motion was made for an attachment against him, still under the old procedure. But the President held that the new procedure must be complied with,3 which is to the effect that no writ of attachment shall be issued without the leave of the court, to be applied for after notice to the party against whom the attachment is to be issued. "The notice," continued the President, "is substituted for the rule nisi, and such notice must be given before I grant this application."4 The following case relates also to the practice in a proceedon appear- ing of this description. Probate of a deceased testator's will was granted to his executors in a district registry. Subsequently, on affidavit that the testator had executed a later will, mentioning the names of the executors, they were ordered to attend in the court for examination "touching their knowledge of the testamentary writings or writing of the testator deceased." Counsel for the next of kin and heir-at-law having examined one of the persons appearing, it was sought to re-examine her by counsel seeking to appear on her behalf. On objection taken that 1 Laws, 2 P. & D. 458; 41 L. J., Prob. 41. 2 Parkinson v. Thornton, 37 L. J., Prob. 3. 3 By Order XLIV. r. 2; R. S. C. 1883. Baigent v. B., 1 P. D. 421 (1871). the inquiry was only preliminary, and to enable the heirat-law to determine whether he ought to institute a suit, Sir J. P. Wilde permitted the appearance of counsel for the person under examination, on the ground that in the proceeding bearing the nearest analogy to this, that of the examination of a bankrupt, counsel was permitted to examine him on his own behalf. Here the evidence of another of the persons summoned to appear affected the conduct of the one already examined, whereupon the court permitted her counsel to put further questions to her.1 The course to be followed on voluntary appearance is contained in the following rules. The time for appearance varies, but it is usually eight days. The person bringing in such a paper as is here specified must obey the following rules : 84 P. R. Any person bringing in a will or testamentary paper, in Probate obedience to a subpoena, is to take it in the first instance to the Rules, Nonclerk of the papers, who will prepare a minute to be signed by the C. B. registrar to whom the will or paper brought in is to be delivered, Subpoenas to and the registrar will sign the minute recording the delivery bring in thereof. testamentary 85 P. R. The minute is to be entered in the book of registrar's papers. minutes in the usual manner; and the fee for entry, and a further fee for filing each testamentary paper, will then be payable. If these fees should not be paid by the person bringing in the will or paper, the same are to be charged to the person who may first apply to the clerk of the papers to make use of the will or paper so brought in. In case the person bringing in a will or testamentary paper may desire to have a voucher for its delivery into the registry, he may take an office copy of the minute on paying the usual fee for the same. 86 P. R. Any person served with a subpoena to bring in a testamentary paper is at liberty to enter an appearance on payment of the usual fees, if he thinks fit to do so. 87 P. R. The time fixed by a warning or citation for entering an Time allowed appearance, or by a subpoena, to bring in a testamentary paper, for appearing shall, in all cases, be exclusive of Sundays, Christmas Day, and to a warning, Good Friday. A person's costs on appearance to a subpoena are those of a witness, and he can either demand them first or sue for them afterwards, but when he becomes a party to a suit in 1 Cope, 36 L. J., Prob. 83. citation, or subpœna. Subpoenas, which he has no interest he may be condemned in the costs incurred through his appearance.1 R. 26. Where it is intended to sue out a subpoena, a præcipe for that purpose, in the Form No. 21, in Appendix G., and containing the name or firm and the place of business or residence of the solicitor intending to sue out the same, and, where such solicitor is agent only, then also the name or firm and place of business or residence of the principal solicitor, shall in all cases be delivered and filed at the central office. R. 27. A writ of subpoena shall be in one of the Forms 1 to 7 in Appendix J., with such variations as circumstances may require. R. 28. Where a subpœna is required for the attendance of a witness for the purpose of proceeding in chambers, such subpæna shall issue from the central office upon a note from the judge. R. 29. Every subpoena other than a subpoena duces tecum shall contain three names where necessary or required, but may contain any larger number of names. R. 30. No more than three persons shall be included in one subpœna duces tecum, and the party suing out the same shall be at liberty to sue out a subpæna for each person if it shall be deemed necessary or desirable. R. 31. In the interval between the suing out and service of any subpoena the party suing out the same may correct any error in the names of parties or witnesses, and may have the writ resealed upon leaving a corrected præcipe of such subpoena marked with the words "altered and re-scaled," and signed with the name and address of the solicitor suing out the same. R. 32. The service of a subpoena shall be effected by delivering a copy of the writ, and of the indorsement thereon, and at the same time producing the original writ. R. 33. Affidavits filed for the purpose of proving the service of a subpoena upon any defendant must state when, where, and how, and by whom, such service was effected. R. 34. The service of any subpoena shall be of no validity if not made within twelve weeks after the teste of the writ. Motions, re papers MOTIONS CONCERNING TESTAMENTARY PAPERS. Motions concerning production of testamentary papers are usually as follows: (1) For the production of papers purporting to be testatestamentary, mentary.2 (2) Or for an order for the examination in open court, or on interrogatories of a person who has possession or knowledge of testamentary papers. Sect. 26, which is based upon the old procedure, renders any person, coming within its terms, liable to contempt for disobeying them. 1 Jackson v. Floyer, MS. 2 On affidavit under sect. 26, ante, p. 322; and rule 73, C. B. |