different statutes of the Irish Parliament, down to the period of the Irish union; and of the United Kingdom, since that period. It would also be foreign to our present purpose to examine in what respects the bankrupt laws in Ireland concur with those in England, and in what those laws differ at the present day.

In Scotland there are two different kinds of bankruptcy; one under the act of the Scottish Parliament of 1696 (r), which extends to persons of every description, whether traders or not; the other under those statutes by which sequestration of the estate and effects is awarded against persons in trade, and the other descriptions of persons therein pointed out. Under the first species of bankruptcy all deeds of preference granted by the bankrupt " either "at, or after his becoming bankrupt, or in the space of sixty days of before, in favour of his creditor, either for his "satisfaction or further security in preference to other "creditors," are declared to be null and void. But no general conveyance is directed to be made for the benefit of creditors, and this species of bankruptcy is of no effect or operation out of Scotland.

It is only to the other species of bankruptcy, namely that under the statutes for awarding sequestration, that the rules of international bankruptcy apply. The first of these statutes in regard to Scotland was passed in 1772 (s), which has been continued from time to time, with various alterations and improvements to the present time; thus the law of Scotland in regard to the sequestration of the estates of bankrupts, is also of very recent origin. (t)

There are several particulars, in which bankruptcy in England and in Ireland differs from a sequestration under the statutes in Scotland; but they are clearly held by all

(r) 1696. c. 5.

(s) 12 Geo. 3. c. 73. (t) The laws in regard to Bankruptcy were introduced into Ireland and into Scotland, nearly at the same period.

the British Courts to coincide in this, that a commission of bankrupt in England, or in Ireland, or a sequestration in Scotland, with the assignments and conveyances respectively following upon these, have the effect of transferring to the assignees, or to the trustee, the whole personal estate of the bankrupt, and of defeating all preferences attempted to be obtained by the diligence of the law of the country where the property happens to be placed, or by any voluntary conveyance of the bankrupt, after the period when the effect of the proceedings under the bankruptcy attaches to the funds. (u)

Towards the beginning of the last century, it appears that questions of international law respecting bankruptcy had attracted attention in England. Several of the most celebrated English lawyers at that time having been consulted as to the international effects of a bankruptcy in England and in Holland, appear to have been of opinion, than an English commission of bankrupt would carry the effects of the bankrupt wherever situated; but that the law of England paid no attention to a bankruptcy in Holland, and that such bankruptcy would not protect the effects of the Dutch bankrupt from any attaching creditor in England (x); and Lord Talbot, when at the bar, appears to have given a similar opinion in 1723, that the statutes of bankruptcy did not extend to the plantations, but that the personal property of an English bankrupt in the plantations passed to the assignees. (y)

(u) 2 Bell's Comment., 682.

(x) These opinions, including those of Lord Raymond, and Sir Joseph Jekyll when at the Bar, are given in Henry's Demerara Case, Appendix D., from a Dutch work, Barel's Advysen over den Koophandel and Zeevaart, vol. ii. p. 291.

(y) Beawe's Lex Mercat. 543. Thus at this period the English lawyers did not admit the comity, that a foreign bankruptcy carried effects in England, as was claimed for an English bankruptcy in foreign countries.

The first case of international law regarding bankruptcy which appears to have attracted attention in the courts, was that which arose out of the bankruptcy of Captain Wilson, a banker and agent in London, who had personal property also in Scotland. In that case the import and effect of an English bankruptcy came to be considered in both countries, in the Court of Chancery (in the time of Lord Hardwicke) in England, and in the Court of Session in Scotland. What was done in the Court of Chancery does not very distinctly appear. Three different sets of creditors claimed under this bankruptcy, one who had assignments of debts in Scotland due to Wilson, executed and duly intimated before the bankruptcy; another, who had such assignments executed, but not intimated before the bankruptcy; and a third set, who had arrested debts due to the bankrupt in Scotland after the bankruptcy. Lord Hardwicke appears to have given preference to the first and second classes as to mortgagees; but he decided, that if they claimed under the commission, they must account for what they received under their assignments; and he preferred the assignees under the commission to the arresting creditors. His Lordship appears to have been of opinion, that the bankruptcy carried the property in Scotland to the assignees, in so far as this was not subject to prior remembrances at the time of the bankruptcy. (z)

The same question appears to have been much considered in the Court of Session in Scotland under the same bankruptcy. (a) The decisions upon all the points do not very distinctly appear in the Reports. Lord Loughborough (in the case of Sill v. Worswick, to be afterwards men

(2) 1 H. Black. 691.

(a) Fac. Coll., 1st Feb. 1755. This appears in the report of only one decision, but the cause appears to have been in court and discussed from 1754 downwards till 1758. 5 Brown's Supp. 280. 821. 938.

tioned), states that "the determination of Lord Hard"wicke and that of the Court of Session entirely con"curred." It appears to be doubtful if they concurred on all the points decided in the two countries. We see, from the Report in the Faculty Collection, that "the "Court of Session preferred the assignees under the com"mission of bankruptcy with respect to the English debts, "that is to the debts contracted in the English form, or pay"able in England." They also, according to Lord Monboddo's note, "preferred the voluntary assignees (which "were prior in date to the bankruptcy, but not intimated) upon seeing the opinion of English lawyers.” (b)

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(b) This decision does not seem to have given satisfaction at the time to that distinguished lawyer, Lord Kilkerran; nor to Lord Monboddo. Lord Kilkerran's notes on this case are given in 5 Brown's Supp. 283. He appears to have held the opinion," that the preference "of creditors was to be determined, not by the laws of the country "where the creditor had his residence, but by the laws of the country “ubi res fuit sîta, be they mobilia or immobilia, and that in this respect "there was no difference of opinion between nomina and other mobilia,

as by all the lawyers who have wrote on this subject, these loco mo"bilium habentur; and that the brocard mobilia non habent sequelam is << an abstract notion, not founded in reason, nor in the nature of the thing."

He considered that it was almost ridiculous to talk of comitas in this case, that there could be no comitas where it was not mutual, and that the English allowed no such comitas to us. He adds, " if any man 66 should argue in any of the courts in England for a preference by a 'judgment in Scotland, on effects in England, he would be laughed at; " and really I can hardly keep my countenance when I see and hear it "pled, that we should show them a good example."

In the argument as given by Lord Monboddo (5 Brown's Sup., p. 821.), it is stated, "that the maxim that mobilia non habent situm is

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only founded upon the authority of some Dutch doctors, and takes place no where else, except among the little states of Holland, which are so much mixed and interwoven one with another; but did never "take place in separate and distinct states, such as France and Holland, "France and Britain, or even England and Scotland, which are as “much distinct, as to their laws and jurisdictions, as any two kingdoms "in Europe: that this law does not hold even with respect to succes

This case is curious, as showing the opinions of distinguished persons in both countries upon the state of the law connected, as well with succession as with bankruptcy at that period. Already that eminent man Lord Hardwicke appears to have matured those doctrines, which in more recent times have obtained universal assent in the British courts; while Lord Kilkerran and Lord Monboddo appear to have considered, that even if the courts of Scotland decided upon enlarged views upon this subject, it was in vain to expect a reciprocity of decision in England. That they were mistaken upon this subject, has been made apparent by the judgments which have since been given thereon in the English and Irish courts. (c)

It is not necessary here to do more than give a short sketch of these. The first was the case of Neale and Others, assignees of Grattan, an English bankrupt v. Cottingham, who had attached effects of the bankrupt in Ireland. (d) Upon a bill filed by the assignees in the Court of Chancery in Ireland, to recover the property from the attaching creditor, Lord Lifford called in the assistance of several of the Judges; and, after great consideration in 1764, he pronounced a decree in favour of the plaintiffs, the assignees.

The same thing was done in the Court of Chancery in England, in regard to two cases of Dutch bankruptcy, Solomons v. Ross, before Mr. Justice Bathurst, sitting for

"sion; and a man dying intestate has as many separate heirs as he has "estates in different countries; and so it was decided in this country in "the case of Duncan."

(c) It is to be remarked, that there was then no law in Scotland for the sequestration of the effects of a bankrupt, this having been first introduced in 1772, by the act of 12 G. 3. c. 72. Thus, when the discussions took place in Wilson's case, the creditor in Scotland took nothing under which he could make a reciprocal claim against an attachment in England.

(d) 1 H. Black. 131., note to Folliott v. Ogden. It is to be remarked that at this period the bankrupt law had not been introduced into Ireland.