MAR. 4.] THE NEW ZEALAND GAZETTE.

Act, 1908," His Excellency the Governor of the Dominion of New Zealand, acting by and with the advice and consent of the Executive Council thereof, and with the concurrence of Their Honours the Judges of the Supreme Court of the said Dominion, doth hereby revoke the rules of the Code of Civil Procedure mentioned in the First Schedule hereto as from the first day of April, one thousand nine hundred and nine; and doth hereby make the rules contained in the Second Schedule hereto, and doth declare that the said rules set out in the said Second Schedule shall come into force and take effect as and from the first day of April, one thousand nine hundred and nine.

THE FIRST SCHEDULE.

RULES REVOKED.

RULES numbered 369 and 370 and rules numbered from 517 to 531, both inclusive, of the Rules of the Code of Civil Procedure under "The Judicature Act, 1908."

THE SECOND SCHEDULE.

RULES MADE.

Writ of Sale.

THE following rules shall be substituted for the rules Nos. 369 and 370 of the Code of Civil Procedure under "The Judicature Act, 1908," which have been hereby revoked:

369. Such notice of the time and place of any intended sale of chattels shall be given by advertisement in such form and giving such general or particular description of the chattels to be sold, and in such newspaper or newspapers circulating in the neighbourhood, as such officer deems sufficient; and such advertisement shall be published in such newspaper or newspapers at least five days before the date of the intended sale, and may be republished in the same or such other newspaper or newspapers as he shall deem sufficient.

370. Such notice of the time and place of any intended sale of any estate, right, title, or interest in land shall be given by advertisement in such form and giving such particulars, and in such newspaper or newspapers circulating in the neighbourhood, as such officer deems sufficient, so that it shall be published in some newspaper or newspapers at least twenty-one days before the date of any intended sale, and may be republished in the same or such other newspaper or newspapers in such manner and to such extent as he shall deem sufficient: Provided that where the officer to whom the writ is directed does not hold the office of Registrar, the advertisement and the advertising and republication shall be subject to the approval of the Registrar, but no sale shall be deemed void or irregular by reason of such approval not having been obtained or observed.

Ex parte and Consent Motions.

413A. Every notice of motion for probate or letters of administration, and every other notice of motion intended to be moved ex parte, shall have indorsed at the foot or end thereof a certificate signed by the solicitor engaged in the proceedings, or by counsel, in the following form: "Certified pursuant to the rules of Court to be correct."

413B. In every case of a motion, coming within the last rule, for an order to be made under the provisions of any special statute, such as "The Companies Act, 1908," "The Settled Land Act, 1908," "The Trustee Act, 1908," "The Administration Act, 1908," &c., there shall be indorsed upon the notice of motion, or embodied in a memorandum attached thereto or filed with the papers, a reference signed by the solicitor engaged in the proceedings, or by counsel, to the statute under which the motion is made, and to the sections relied upon by the solicitor or by counsel in support of the motion. If the solicitor or counsel relies upon any decided case, or upon any passage in a recognised textbook, in support of the motion, there shall also be indorsed upon the notice of motion, or embodied in a memorandum attached thereto or filed as above mentioned, a reference to such case or passage.

413C. Any solicitor or counsel signing any notice of motion under these rules must personally satisfy himself that the papers are regular and in order, and that the order moved for is one which ought to be made; and such solicitor or counsel will be responsible to the Judge for the regularity of the papers upon which the motion is founded.

413D. In cases coming within the last three rules solicitors and counsel will not be heard and need not attend in person in the first instance, unless so required by the Judge, or unless by an appointment to be obtained through the Registrar of the Court.

413E. If the papers are regular, and the motion is for an order which it appears to the Judge ought to be made, an order will be made accordingly.

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413F. If there is any irregularity in the papers, or if it appears to the Judge to be doubtful whether the order ought to be made, the attention of the solicitors concerned will be drawn to the irregularity through the Registrar, or the motion will be adjourned, and notice will be given through the Registrar that the solicitor or counsel is required to attend upon the motion.

413G. In all cases in which during the absence of the Judge it is desired to move under the foregoing Rules Nos. 413A to 413D, both inclusive, the papers in the matter in which it is desired to move shall, at the request of the solicitor concerned, be forwarded through the Registrar of the Court in the registry in which such papers are filed to the Registrar of the Court at the town where the Judge ordinarily presiding in the judicial district in the registry in which such papers are filed may be for the time being, to be laid before such Judge. Such motions will then be dealt with by the Judge in accordance with the foregoing rules. When such motions have been so dealt with, the Registrar to whom the papers in connection with such motions have been forwarded shall return the same to the Registrar of the Court wherein the same were filed.

413H. Any summons or motion for an order to which the solicitor or counsel for the opposite party consents, if a written consent signed by the solicitor or counsel for the opposite party is filed with the Registrar, may be dealt with as mentioned in the last rule.

Extraordinary Remedies.—Motions.

468A. Every such motion shall be made upon notice except in cases falling within subrules 1 and 3 of Rule 396. If notice of motion cannot be given for the full time required by the rules as to notices of motion, such notice must be given as the exigency of the case will allow.

468B.—Every interlocutory or interim order made upon any such motion shall contain an undertaking by the plaintiff to abide by any order which the Court may make as to damages, in case the Court shall thereafter be of opinion that the defendant shall have sustained any by reason of the order which the plaintiff ought to pay.

468C. If any such judgment or order shall be drawn up without containing the undertaking required by Rule 468B, the plaintiff shall nevertheless be bound by such undertaking as though the same had been embodied in the judgment or order. Nevertheless the defendant may move to vary or discharge such interlocutory or interim order upon the ground that it does not contain such undertaking, and upon such motion such order may be varied or discharged as to the Court shall seem meet, and in such case the plaintiff shall in any event pay the costs of such motion and of any order made thereon.

Probate and Administration.

517. Every notice of motion for probate of the will or for letters of administration of the estate and effects of any deceased person, and all affidavits, documents, and papers connected therewith, shall be filed in the registry nearest to which the deceased resided or was domiciled at the time of his death.

If the deceased was not resident or domiciled in New Zealand, such notice of motion, affidavits, documents, and papers shall be filed in the principal registry of the judicial district wherein is the property of the deceased, and if such property is in more than one judicial district, then in the registry at the City of Wellington, or in such other registry as the Court may on motion made prior to the filing allow. In every case of such an order being made notice thereof shall be sent by the Registrar to the Registrar at Wellington.

If the notice of motion shall have been filed in a wrong registry, the Court may order it, and all the documents filed therewith, to be transferred to the proper registry.

518. Every person named in any will as executor, or claiming to be the executor according to the tenor thereof, who desires to obtain probate thereof shall, pursuant to the last rule, file in the proper registry a notice of motion and an affidavit in the Form No. 34 in the Appendix hereto; but if such person shall be unable to prove of his own knowledge the death of the testator, the second paragraph of the said form shall be omitted, and the death of the testator shall be proved by some person acquainted with the fact by an affidavit in the form of the first two paragraphs of the said Form No. 34. Where by the will more than one person is appointed to the office of executor thereof, and the application for probate is made by some or one only of such executors, then the executors or executor propounding the will for probate shall state in the affidavit required by this rule the then present addresses or address of the other persons or person named as executors or executor by the will, and the reason why such persons or person do not join in the application for probate.