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Lord Northington, in 1764, and Jollet v. Deponthieu, before Lord Camden, in 1769. (e) In both of these cases, creditors of the bankrupts had, after the bankruptcy in Holland, attached effects of the bankrupts in London; but the curators of the desolate estates in Holland having filed bills in the Court of Chancery in England against the attaching creditors, were preferred to them in regard to the funds which had been thus attached. (ƒ)

Next came these well-known cases in England, of Hunter v. Potts, before Lord Kenyon, in the King's Bench, in 1791 (g); of Sill v. Worswick, before Lord Loughborough, in the Common Pleas, in the same year (h); and of Phillips and others v. Hunter and others, before Lord Kenyon, in the King's Bench, in 1795. (i) In all of those cases

(e) Ibid.

(ƒ) At one time there appears to have been some uncertainty as to the rules of decision in England in questions of this nature. In the case of Waring v. Knight, before Lord Mansfield, in 1765 (Cooke's Bankrupt Law, 325.), his Lordship is said to have held the opinion, that the assignees of a bankrupt could not recover against a creditor of the bankrupt who after the bankruptcy had attached the effects of the bankrupt abroad, and thereby received payment of his debt; but in Ballantine v. Golding (Cook, 520.), his Lordship afterwards held, that a bankrupt who had obtained his certificate in Ireland could not be sued in England for debts incurred by him in Ireland previous to the bankruptcy.

It does not appear that the Court of Chancery, in the cases of Solomons v. Ross, and Jollet v. Deponthieu, made any inquiry whether the courts in Holland would have exercised similar comity in favour of assignees under an English bankruptcy, if arrestments had been laid in Holland on the effects of an English bankrupt. In the case of Wilson, the lawyers in Scotland appeared to have considered, that a comity of this kind should be reciprocal.

(g) 4 Term. Rep., 182.

(h) 1 H. Black., 665.

(i) 2 H. Black., 402. 405. 409. The last case was affirmed in the Court of Exchequer Chamber, Chief Justice Eyre alone dissenting. His difficulties appear to be important; he considered that we might thus be putting the foreign creditor into a better position than our own subjects; and he thought that inquiry should be made what the comity of the foreign country would have done in such case.

it was decided, that where creditors had, after the date of the bankruptcy, attached the effects of the bankrupt abroad, and had recovered and remitted the proceeds to England, the assignees of the bankrupts were entitled to receive back the value of those effects as against the attaching creditors. In all of them the elaborate arguments of counsel, and the opinions of the judges, enter fully also into the doctrines of international law in regard to succession. In every one of them it is distinctly laid down, that personal property followed the law of the domicil; and that real estate was governed by the lex loci rei

sitæ.

An important case next occurred in Scotland upon this branch of the law, which was at last decided upon principles which have now been universally recognised in both countries. Since the case of the creditors of Wilson had been decided by the Court of Session, as already noticed (k), several cases had occurred in that Court, which (as a distinguished writer observes) " exhibited a very distressing versatility of opinion."(1) But when the decisions had been given in Bruce v. Bruce, Hog v. Lashley and others, establishing that moveables had no situs, and that cases of succession were to be regulated by the law of the domicil, the Court of Session applied a similar rule of decision in cases of bankruptcy. Thus in the case of Strothers v. Reid (m), the Court of Session pronounced a decision similar to those which had

(k) Supra, p. 232.

(1) 2 Bell's Commentaries, p. 683. He instances the following as of this nature, among others: - Thomson v. Tabor, 1762 (Morrison, 4561.); Pewtress v. Thorold, 1768 (Ibid.); Parish v. Rhones, 1775, and Vasie v. Glover, 1776 (5 Brown's Sup., 451.). Of these cases it is to be remarked, that only the two last occurred after bankruptcy by sequestration had been introduced into Scotland; and these were both decided upon the principles now recognised in the British courts.

(m) Fac. Coll., 1st July, 1803. Morrison, Forum Competens, App. 4.

already been given in the above mentioned cases of Neale v. Cottingham, Hunter v. Potts, Sill v. Worswick, and Phillips v. Hunter, in the English courts. In the case of Strothers v. Reid, the English creditor of an English bankrupt Company had arrested some of their effects in Scotland, after the commission of bankrupt had been issued, and the assignment executed. Upon an action brought by the assignees against the arresting creditors, the Court of Session preferred the assignees; and though this only involved the case of an English creditor, it is mentioned in the report, that the Court by a great majority proceeded on the general ground, that the bankruptcy carried to the assignees all the effects of the bankrupt wherever situated.

This case was in bankruptcy in Scotland nearly what the case of Bruce v. Bruce was in personal succession. It fixed upon a certain basis the principles, which were to be acted upon in cases of this nature, and which have since been repeatedly recognised in similar cases, which have attracted general attention in both countries.

In the case of Potter v. Brown before Lord Ellenborough, in the Court of King's Bench, in 1804 (n), it was found, that a person who had become bankrupt in America, and had obtained his certificate in Maryland, and who had afterwards come to England, could not be sued in the latter country, for a bill which he had drawn in America before his bankruptcy upon a house in England, and which had been refused acceptance, and had gone back to America. (0)

(n) 5 East's T. R., 124.

(0) The Court of Session appears to have come to an opposite conclusion upon this subject, in the case of Armour v. Campbell (Fac. Coll. 21st January, 1792.) Campbell, settled at New York, drew a bill in favour of Armour, also settled there, upon Campbell's father in Greenock. This bill was not accepted. Soon after Campbell became bankrupt at New York, and received his discharge. Being afterwards sued

In the case of Maitland v. Hoffman, 4th of March, 1807 (p), it was decided in the Court of Session, that the assignees of an American bankrupt were preferable to a Scotch creditor arresting in Scotland, where the creditor had used arrestment after the date of the commission, but before the date of the assignment. In that case, the commission was issued on the 2d of February, 1802; the party was declared bankrupt on the 5th of February, and the assignment to Hoffman the assignee was executed on the 2d of March. In the mean time the arrestment had been used in Scotland on the 24th of February.

In the case of The Creditors of Fairholme v. The Assignees under the English commission against Samuel Garbett (q), the question formerly decided in the case of Strothers v. Reid, in regard to an arrestment in Scotland by an English creditor was again tried in regard to an arrestment by a Scotch creditor; and the Court of Session found, that the assignees of the bankrupt were to be preferred also to a Scotch creditor, who had arrested in Scotland after the date of the commission; they approved of the decision in

upon this bill in Scotland, to which country he had removed, he brought a suspension on the ground of his bankruptcy and certificate at New York; the Lord Ordinary sustained the reasons of suspension, but the Court altered this interlocutor, and “found that the statutory dis

charge obtained at New York cannot bar the charger from recovering "the sums due to him in this country by the ordinary diligence of the "law of Scotland." I do not see this case mentioned in Bell's Commentaries; but it is important, though contrary to the principles laid down in modern cases.

(p) Fac. Coll. Another case of the same kind was decided on the same day, Morrison's assignees v. Watt. It does not appear to have been doubted in these cases that there would have been an entire reciprocity of decision in the American courts if the case had occurred in them; but vide infra, p. 244.

(q) 2 Dow 330.; 2 Rose's Bank. Cases, 291. It is singular that this very important case was not reported in Scotland.

Strothers's case, and held that the assignees were to be preferred to the Scotch arresting creditor. The judgment was affirmed upon an appeal to the House of Lords.

In the case of the Royal Bank of Scotland v. Scott, Smith, Stein and Co. 20th January 1813 (r), commonly called Stein's case, a question occurred in regard to conflicting bankruptcies in the two countries, which should be preferred. Thomas Smith, John Stein, James Stein, Robert Stein, Robert Smith, and William Scott were Bankers and Insurance Brokers in Edinburgh, under the firm of Scott, Smith, Stein and Co. The same parties carried on business in London, under the firm of Stein, Smith, and Co.

The Scottish firm became insolvent in July 1812; the English house was also insolvent. On the 11th of August 1812, a Commission of Bankrupt was issued against the English house. A provisional assignment was executed by the Commissioners on the same day. On the 1st of September assignees were named. On the same day deeds in the English form, and on the 7th and 8th deeds in the Scotch form were executed, making over the whole property of the bankrupt, heritable and moveable, in Scotland, to the assignees. In the mean time the Royal Bank of Scotland had used diligence against the Scotch house: on the 28th of August 1812, they were rendered bankrupt in Scotland; and on the 29th of August, the bank presented a petition to the Lord Ordinary on the bills, praying in common form for a sequestration of all the estates of the Company, and of the Partners as individuals, wherever situated.

The English assignees appeared and opposed the sequestration in Scotland. The question was, whether or not the

(r) Fac. Coll. Buchanan's Cases, 320.; 1 Rose's Bank. Cases, 462.

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