unless the judge, or other person to preside at such trial, shall be of opinion that such copy may be made and delivered without delay or inconvenience to such trial; but it shall, nevertheless, be competent for such judge or other person so to preside at such trial, if he shall think fit, to postpone such trial on account of such copy of the examination of witnesses not having been previously had by the party charged. § 13. All persons under trial shall be entitled, at the time of their trial, to inspect without fee or reward, all depositions (or copies thereof) which have been taken against them, and returned into the court before which such trial shall be had. PRIZE FIGHTING. All persons present at, and countenancing a prize fight, are guilty in law of a misdemeanor. And when such a fight is expected to take place, a magistrate ought to cause the intended combatants to be brought before him, and compel them to find sureties to keep the peace till the assizes or sessions: and if they refuse to do so, he should then commit them till they comply with such requisition.-R. v. Billingham, 2 C. & P. 234. PROBATE. Of the office and duty of Executors. An executor, before the will be proved, may seize and take into his hands any of the goods of the testator. He may pay debts, receive debts, make acquittances and releases of debts due to the testator, and take releases and acquittances of debts owing by the testator. Also, an executor may, before probate, sell or give away any of the goods or chattels of the testator: and in general, an executor is a complete executor before probate, to all purposes but bringing of actions.-1 Salk. 301; Went. Off. Ex. 34, 35; Lovelass on Wills, 258, 259. The executor may, in convenient time after the testator's death, enter into the house descended to the heir, for the removing and taking away of goods, so as the door be open, or at least the key be in the door: but he cannot justify the breaking open the door of any chamber to take goods there; but only may take those in the rooms which be open.-Lovelass on Wills, 260. Of the office and duties of an Administrator. An administrator cannot act before letters of administration are granted to him.-Lovelass on Wills. By stat. 31 Edw. III. c. 11, 21 H. VIII. c. 5, § 3, in case any person shall die intestate, or the executors refuse to prove the testament, administration shall be granted to the widow or next of kin, or to both, taking surety for true administration. By 22 & 28 Car. II. c. 10, made perpetual by 1 Jac. 2, c. 17, it is enacted, that the surplusage of an intestate's estate shall be distributed-one-third to the wife of the intestate, the residue amongst his children and such as legally represent them, if any be dead, other than such children (not heirs at law), who shall have any estate by settlement of the intestate in his lifetime, equal to the other shares. Children, other than heirs at law, advanced by settlements, or portions not equal to other shares, shall have so much of the surplusage as shall make the estate of all to be equal. But the heir at law shall have an equal part in the distribution with the other children, without any consideration of the value of the land which he hath by descent or otherwise from the intestate.-§ 4. If there be no children, nor legal representatives of them, one moiety shall be allotted to the wife, the residue equally to the next of kindred to the intestate, in equal degree, and those who represent them. § 5. No representation shall be admitted among collaterals, after brothers' and sisters' children; and if there be no wife, all shall be distributed among the children; and if no child, to the next of kin to the intestate in equal degree, and their representatives. § 6. No such distribution shall be made till one year after the intestate's death, and every one to whom any share shall be allotted, shall give bond with sureties in the said courts, that if debts afterwards appear, he shall refund his ratable part thereof, and of the administrator's charges. § 7. A brother or sister of the half blood shall have an equal share with those of the whole blood.-Com. Dig. Adm. (H.) If none of the kindred will take out administration, a creditor may, by custom, do it.-Lovelass on Wills, p. 7. Of the Will. No witnesses are absolutely necessary to render valid a will of merely personal property: but with respect to a will of real or landed property, until lately, three witnesses were necessary; and now by the *4 W. IV. c. 1, § 51, two witnesses are suffi cient. Probate of the Will, how granted, &c. *By statute 33 G. III. c. 8, a court is constituted and estab lished for the granting of probates of wills, and committing letters of administration of the goods of persons dying intestate, to be called the Court of Probate of the province of Upper Canada; the governor to preside therein and pronounce judg ment in all suits that may be brought before him, with power to call in an assessor or assessors to act with him, and from time to time to appoint an official principal, registrar, and other necessary officers. By § 2, the governor is authorised to institute, by commission, under the great seal, in every district, a court for granting probates of wills and letters of administration of persons having personal estate within such district, to be called the Surrogate Court of the Eastern district; the Surrogate Court of the Midland district; the Surrogate Court of the Western district; and also to appoint from time to time, a surrogate to preside as judge in each of the said courts, and a registrar, and such other officers as may be necessary; and each of the said courts shall have full power to issue process and hold cognizance of all matters relative to the granting of probates of wills and letters of administration, and to grant the same within their respective disticts, except as hereinafter mentioned. § 3. In cases where the deceased shall have goods, chattels or credits, to the amount of £5, in any other district than the one in which he died; or when any person shall die, possessed of goods to the value of £5, in two or more districts, the probate or letters of administration shall be granted by the Court of Probate only. By § 6, every will duly proved shall be kept among the records of said court; and a transcript thereof duly authenticated under seal of the court, shall be taken and received as the regular probate of such will, in all her Majesty's courts within this province. By § 7, no nuncupative will shall be good where the estate thereby bequeathed shall exceed £30, that is not proved by three witnesses, at the least, present at the making thereof; nor unless the testator bid the persons present bear witness; nor unless made at the last sickness of the deceased, and in his dwellinghouse, or where he had been resident ten days before making such will, except when such person was taken sick being from home, and died before he returned. § 8. After six months from the speaking of such testamentary words, no nuncupative will shall be good, except the substance thereof were committed to writing within six days after the making of such will. 9. No probate shall be granted till fourteen days after the death of the testator; nor shall any nuncupative will be at any time received, unless the widow or next of kin have been cited; § 10, nor until due proof be made before the said judge or surrogate, that such person is dead, and died intestate. 15. In cases where administration shall be granted with the will annexed, such letters shall express that such will shall be observed and performed, and for such purpose the administrator shall enter into bond with two or more sufficient sureties. § 17. The Court of Probate and Court of Surrogate respectively, shall hold four sittings or terms for hearing and determining actions, suits and causes, &c. viz.: The first term from the first Monday in January to the Saturday following, inclusive; the second term, from the last Monday in March to the Saturday following, inclusive; the third term from the first Monday in June to the Saturday following, inclusive; and the fourth term, from the last Monday in September to the Saturday following, inclusive. § 18. The following fees may be taken: Fees to be taken by the Official Principal and Surrogate. OFFICIAL PRINCIPAL AND SURROGATE. For seal to the probate of a will, to letters of ad- For seal of the court to any writing or instrument 0 13 For receiving caveat ... For receiving inventory. For citation For collating will... ... REGISTRAR. £0 16 0 068 1 0 0 068 £0 2 0 For drawing bond and attesting execution. For searching register, each year For office copy, each page 18 lines, 6 words in each.... APPARATOR OR MESSENGER. For service of citation.... For travelling, each mile.. Letters of Administration, how granted, &c. 0 0 4 By same statute, *33 G. III. c. 8, § 11, when application is made for letters of administration by any person not entitled as next of kin to the intestate, the court, before granting the same, shall issue a citation to the next of kin, summoning him or her to appear and shew cause against the same, and in case the next of kin should happen to be absent from the province, the court may then grant administration pro tem. to the next of kin in the province. § 12. The judge or surrogate, upon granting letters of administration, shall take sufficient bonds from the party, with two sureties, in the name of the governor, according to the form prescribed. Form of the condition of the Bond. "The condition of this obligation is such, that if the within bounden A. B. administrator of all and singular the goods, chattels, and credits of C. D., deceased, do make or cause to be made, a true and perfect inventory of all and singular the goods, chattels and credits of the said deceased, which have or shall come into the hands, possession or knowledge of him, the said A. B., or into the hands and possession of any other person or persons for him, and the same so made, do exhibit or cause to be exhibited into the registry of- — court, on or before the day of next ensuing, and the same goods, chattels and credits, and all other the goods, chattels and credits of the said deceased, at the time of his (or her) death, which at any time after shall come into the hands or possession of the said A. B., or into the hands and possession of any other person or persons for him, do well and truly administer according to law, and further do make or cause to be made, a true and just account of his said administration, at or before the day of and all the rest and residue of the said goods, chattels and credits, which shall be found remaining upon the said administrator's account, the same being first examined and allowed by the judge of the court for the time being, shall deliver and pay unto such person or persons respectively, as the said judge by his decree or sentence, conformably to the provisions in a certain act of parliament intituled, "an act for the better settling intestate estates," and passed in the twentysecond and twenty-third years of the reign of Charles II, and also in a certain act passed in the first year of king James II, contained, shall limit and appoint, and if it shall hereafter appear that any last will or testament was made by the deceased, and the executor or executors therein named do exhibit the same unto the said court, making request to have it allowed and approved accordingly, if the said A. B. within bounden, being thereunto required, do render and deliver the said letters of administration (approbation of such testament being first had and made) in the said court, then this obligation to be void and of none offect, or else to remain in full force and virtue." § 13. It shall be lawful for the said judge of probate and surrogate courts respectively to call by citation such administrators to account, and to order and make just and equal distribution of what remains clear, after all debts, funeral and just expenses of every sort first allowed, according to the provisions of the said statutes (22, 23, C. II, & 1 J. II.) But no such distribution shall be made until one year after the intestate's death, and every one participating in such distribution shall give bond to refund in case any debt shall afterwards appear. § 16. An appeal shall be from the Surrogate Court to the Court of Probate, if made within fifteen days after the judg ment appealed from, and security given for prosecuting such appeal. Of the payment of Debts, &c. In payment of debts, the executor or administrator must observe the rules of priority; otherwise on deficiency of assets, if he pays those of lower degree first, he must answer those of a higher out of his own estate. -2 Bl. Com. 511. First: The executor, &c., may pay all funeral charges and the expense |