Executors propounded a lost will and codicils alleging Appeals. (1) due execution; (2) no animus revocandi, validity, and loss; and (3) the contents of the will. The defendants alleged (1) undue execution; (2) destruction animo revocandi; (3) the contents not as alleged ; (4) undue execution of the codicils; (5) their dependency on the will, which, as revoked, revoked them also. Interveners pleaded the same plea. The plaintiffs joined issue on pleas 1, 2, 3, 4, and 5, and demurred also to No. 5 as bad in substance, for not averring revocation of the codicils by any of the modes indicated by 1 Vict. c. 26. Issue followed on the pleas and demurrer. On trial without a jury, after application by consent, the President of the Division, on the two questions raised, (1) whether the evidence of contents (parol almost throughout), (2) and to rebut the presumption of destruction animo revocandi, sufficed, decided them in the order named, as the latter depended on the result of the former. His lordship found first, that the contents of the will were as set out in the declaration, excepting one bequest, with regard to which his lordship ordered an amendment. On the second question, his lordship found the presumption of destruction animo revocandi rebutted. On motion for judgment, the court first decided that the defendant's plea, demurred to, was good, and then gave judgment for the lost will and codicils propounded. On appeal from this decision by both the defendants and interveners, it was objected that there could be no appeal on questions of fact, but only a re-hearing. This was not an appeal from a judgment or order,2 but from a finding of fact. No application was made for a re-hearing. By Ord. XXXIX. r. 1, to obtain a new trial, application must be made to a Divisional Court. This rule leaves the probate rules still in force. The Appeal Court held it in the option of the

1 Under Rule 60 C. B. (1862), ante, p. 449.

2 Judicature Act, 1873, s. 19.

parties to apply to the judge for a re-hearing, but not obligatory, an appeal to the higher court at once being open to them, and, upholding the president's decision, dismissed the appeal with costs.1

The question as to the amendment of pleadings is not properly a ground of appeal. Here a motion to stay proceedings had also been made. Upon this motion, though rejecting it, and ordering a continuance of the proceedings, the court gave leave to appeal on payment of costs.2

In future, the same practice will be followed with regard to appeals in probate matters from a judge in chambers to the court of appeal as has hitherto been followed in the Chancery Division, i. e., no such appeal will be heard by the Court of Appeal without the case being first reheard in court by the judge below, unless he gives a certificate that he does not wish to hear the case further argued.3

16. An appeal shall not operate as a stay of execution or of proceedings under the decision appealed from, except so far as the court appealed from, or any judge thereof, or the Court of Appeal, may order; and no intermediate act or proceeding shall be invalidated, except so far as the court appealed from may direct.

17. Whenever under these rules an application may be made either to the court below or to the Court of Appeal, or to a judge of the court below or of the Court of Appeal, it shall be made in the first instance to the court or judge below.

18. Every application to a judge of the Court of Appeal shall be by motion, and the provisions of Order LII. shall apply thereto.

By Ord. LIX. Rule 4, probate appeals from inferior courts must be to a Divisional Court of the Probate, Divorce, and Admiralty Division.

Ord. LX. appoints the officers of the court.

Ord. LXI. relates to the business of the Central Office;

1 Sugden v. St. Leonards, 1 P. D. 154 et seq.; 45 L. J., Prob. 49.

2 Duprez v. Veret, 38 L. J., Prob. 7.

3 Re Smith, Rigg v. Hughes, Ct. of App. (Cotton and Fry), Jan. 11, 1884.

the function of which, as regards probate proceedings, has Sittings. been already referred to.1

Ord. LXIII. r. 1. The sittings of the Court of Appeal and the Date of sitsittings in London and Middlesex of the High Court of Justice ting. shall be four in every year, viz., the Michaelmas sittings, the Hilary sittings, the Easter sittings, and the Trinity sittings. The Michaelmas sittings shall commence on the 2nd of November and terminate on the 21st of December; the Hilary sittings shall commence on the 11th of January and terminate on the Wednesday before Easter; the Easter sittings shall commence on the Tuesday after Easter week and terminate on the Friday before Whit Sunday; and the Trinity sittings shall commence on the Tuesday after Whitsun week and terminate on the 8th of August.

2. It shall not be necessary for the Court of Appeal or the High The Queen's Court of Justice to sit on the day appointed to be kept as the Queen's birthday. birthday.

3. The sittings of the several offices of the Supreme Court shall Sittings to be extend over the whole of the four periods between the vacations.

between vaca

4. The vacations to be observed in the several courts and offices tions. of the Supreme Court shall be four in every year, viz., the Long Date of vacavacation, the Christmas vacation, the Easter vacation, and the tions. Whitsun vacation. The Long vacation shall commence on the 10th of August and terminate on the 24th of October; the Christmas vacation shall commence on the 24th of December and terminate on the 6th of January: the Easter vacation shall commence on Good Friday and terminate on Easter Tuesday: and the Whitsun vacation shall commence on the Saturday before Whit Sunday and shall terminate on the Tuesday after Whit Sunday.

6. The several offices of the Supreme Court shall be open on Offices of every day of the year, except Sundays, Good Friday, Easter Eve, court when Monday and Tuesday in Easter week, Whit Monday, Christmas open. Day, and the next following working day, and all days appointed

by proclamation to be observed as days of general fast, humiliation,

or thanksgiving.

8. The offices of the Supreme Court (including the Judge's When closed Chambers) shall, save as hereinafter mentioned, close on Saturdays on Saturdays. at 2 o'clock.

9. The office hours in the several offices of the Supreme Court, Hours of other than the Summons and Order, Crown Office, and Associates business. Departments of the Central Office, shall be from ten in the forenoon to four in the afternoon, except on Saturday and in vacation, when the offices shall close at two in the afternoon. In the excepted departments the hours shall be from eleven in the forenoon to five in the afternoon, except on Saturday and in vacation, when the hours shall be from eleven in the forenoon to three in the afternoon. 11. Two of the judges of the High Court shall be selected at Vacation the commencement of each long vacation for the hearing in London judges. or Middlesex, during vacation, of all such applications as may require to be immediately or promptly heard. Such two judges shall act as vacation judges for one year from their appointment. In

1 Ante, p. 369.

Sittings.

Sittings of vacation

judges.

Interval between sittings. Business.

Intervals

when a portion of the vacation.

Time.

calendar.

the absence of arrangement between the judges, the two vacation judges shall be the two judges last appointed (whether as judges of the said High Court or of any court whose jurisdiction is by the principal act transferred to the said High Court) who have not already served as vacation judges of any such court, and if there shall not be two judges for the time being of the said High Court who shall not have so served, then the two vacation judges shall be the judge (if any) who has not so served and the senior judge or judges who has or have so served once only according to seniority of appointment, whether in the said High Court or such other court as aforesaid. The Lord Chancellor shall not be liable to serve as a vacation judge.

12. The vacation judges may sit either separately or together as a Divisional Court as occasion shall require, and may hear and dispose of all causes, matters, and other business, to whichever division the same may be assigned. No order made by a vacation judge shall be reversed or varied except by a Divisional Court or the Court of Appeal, or the judge who made the order. Any other judge of the High Court may sit in vacation for any vacation judge. 14. In the interval between the close of any sittings and the commencement of the next sittings, the judgments or orders of any judge may be prosecuted at the chambers of any other judge by his permission; and in case the prosecution thereof shall not be completed during such interval, the prosecution may be continued at the chambers of the same judge if and so far as he shall think fit. 15. Any interval between the sittings of the High Court or any division thereof, not included in a vacation, shall, so far as the disposal of business by the vacation judges is concerned, be deemed to be a portion of the vacation.

Ord. LXIV. r. 1. Where by these rules, or by any judgment or Months to be order given or made after the commencement of the principal act, time for doing any act or taking any proceeding is limited by months, and where the word "month" occurs in any document which is part of any legal procedure under these rules, such time shall be computed by calendar months, unless otherwise expressed. 2. Where any limited time less than six days from or after any date or event is appointed or allowed for doing any act or taking any proceeding, Sunday, Christmas Day, and Good Friday shall not be reckoned in the computation of such limited time.

Days not reckoned.

Sundays, and offices closed.

Pleading to

cease in long

vacation.

Long vacation not to be

reckoned.

3. Where the time for doing any act or taking any proceeding expires on a Sunday, or other day on which the offices are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open.

4. No pleadings shall be amended or delivered in the long vacation, unless directed by a court or a judge.

5. The time of the long vacation shall not be reckoned in the computation of the times appointed or allowed by these rules for filing, amending, or delivering any pleading, unless otherwise directed by the court or a judge.

6. The day on which an order for security for costs is served, and Time. the time thenceforward until and including the day on which such Order and security is given, shall not be reckoned in the computation of time security for allowed to plead, answer interrogatories, or take any other pro- costs. ceeding in the cause or matter.

7. The court or a judge shall have power to enlarge or abridge Enlarging the time appointed by these rules, or fixed by any order enlarging time. time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed.

8. The time for delivering, amending, or filing any pleading, Enlarging by answer, or other document may be enlarged by consent in writing, consent. without application to the court or a judge.

But where necessary leave for further time to plead is Further time. applied for by summons before the registrar.

11. Service of pleadings, notices, summonses, orders, rules, and Service of other proceedings, shall be effected before the hour of six in the pleadings. afternoon, except on Saturdays, when it shall be effected before the hour of two in the afternoon. Service effected after six in the afternoon on any week day except Saturday shall, for the purpose of computing any period of time subsequent to such service, be deemed to have been effected on the following day. Service effected after two in the afternoon on Saturday shall for the like purpose be deemed to have been effected on the following Monday.

13. In any cause or matter in which there has been no proceeding Procedure for one year from the last proceeding had, the party who desires to after delay. proceed shall give a month's notice to the other party of his intention to proceed. A summons on which no order has been made shall not, but notice of trial although countermanded shall be deemed a proceeding within this rule.

powers.

Ord. LXV. r. 1. Subject to the provisions of the acts and these Costs. rules, the costs of and incident to all proceedings in the Supreme Discretionary Court, including the administration of estates and trusts, shall be in the discretion of the court or judge; provided that nothing herein contained shall deprive an executor, administrator, trustee, or mortgagee who has not unreasonably instituted or carried on or resisted any proceedings, of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in the Chancery Division: provided also that, where any action, cause, matter, or issue is tried with a jury, the costs shall follow the event, unless the judge by whom such action, cause, matter, or issue is tried, or the court, shall, for good cause, otherwise order.

This rule practically leaves the old Probate Rules (4, 5,