English Commission stopped the proceeding in the Scotch sequestration; and the Court decided that it was not competent to award a sequestration under the bankrupt statutes in Scotland, after a Commission of Bankrupt had been issued in England.

In a case of the same date (s), between the Royal Bank of Scotland, and Scott, Smith, Stein and Co., it was decided that a bill drawn by a creditor in Scotland, and accepted by the bankrupts in London, was an English debt; but it was held, on the general question, that a certificate under a Commission of Bankrupt, operated as a discharge of all claims, though the creditor was resident and domiciled in Scotland.

In the case of Odwin and the Orphan Chamber of the Colonies of Demerara and Essequibo, v. Forbes, 10th of May, 1814, affirmed on appeal at the Cockpit, 31st of May 1817, (t) similar doctrines were recognised. Odwin and his partner Schweitzer, settled at Demerara, shipped produce from thence to Turnbull, Forbes and Co. of London; and on the strength of such shipments drew bills on that house payable in London. All those bills were accepted except two; but Turnbull, Forbes and Co. becoming bankrupt, all the bills were dishonoured. Forbes having gone out to Demerara, was sued in that Colony for payment of these bills. Previous to this action, the defendant and his partners took two several objections to the action; the first of tibi adversus me non competit hæc actio, contending that the certificate obtained in England was a legal and equitable bar to the action; the other of incompetency and renvoi, by which the competency of the Court in Demerara

(s) Fac. Coll., 20th January, 1813.

(t) Reported by Mr. Henry, the presiding judge. This report and the treatise annexed to it, contain much curious information heretofore almost unknown to the British lawyer.

to entertain the suit, after the certificate and discharge obtained in England, was denied.

The judgment of the Court (affirmed on appeal) was to admit the exception of tibi adversus me non competit hæc actio; but to reject the exception of incompetency and renvoi.

It would be out of place here to enter into the great variety of questions which have arisen in the two countries, on the subject of international law as applied to bankruptcy. It may be remarked, however, that the retrospective consequences of a commission, and of a sequestration, are not held to be of equal effect in the two countries; and that there is not an entire reciprocity in both, in regard to such consequences.

Thus in the case of Hunter and Company v. Palmer and Wilson, in the Court of Session, on the 25th of February 1825 (u), a question was decided, in some degree militating against the law of the domicil. By the English law, prior to the 49th Geo. 3. c. 121. (commonly known as Sir Samuel Romilly's act), a commission of bankrupt had a retrospective effect, so as to cut down all diligences against the bankrupt's estate, subsequent to any act of bankruptcy, however secretly committed. By that statute it was enacted, that all executions or attachments, at the instance of creditors, executed more than two months before the issuing of a commission of bankrupt, should be valid and effectual, provided the creditor was not in the knowledge of any prior act of bankruptcy committed by the bankrupt. But it was expressly provided in the act, that it should not

extend to Scotland.

A commission of bankrupt was issued against Forster, a merchant in Berwick-upon-Tweed, on the 8th of July 1819; the assignment was made on the 13th of August thereafter.

(u) Fac. Coll. ; 3 Shaw and Dunlop, 586.

R

It was alleged that, in February preceding, he had committed certain secret acts of bankruptcy; that he had become notoriously insolvent on the 29th of April, and that on the 6th of June he had granted an assignment of all his effects to certain persons for the benefit of his creditors.

On the 3d, 5th, 6th, 8th, and 13th of May in that year, Hunter and Company, merchants in Greenock, used arrestments in the hands of Messrs. Galloway, of Glasgow, and others, debtors of the bankrupt ad fundandam jurisdictionem; and, on the 8th of July, the day on which the commission bore date, they obtained decree in their favour in the Court of Admiralty in Scotland. The arrestees having brought a multiplepoinding in that court, the arresting creditors, and the assignees of the bankrupt, appeared for their respective interests. The assignees pleaded that the law of the domicil was to regulate, and that the commission should have the same retrospective effects in Scotland that it would have in England; and consequently that the arrestments used on and subsequently to the 8th of May, being two months before the date of the commission (the bankrupt having committed prior acts of bankruptcy), were null by the statute. The arrestees pleaded that the courts in Scotland had gone as far as comity required; but that it would be giving bankruptcy too large an effect, to give it a retrospect in Scotland: that the act in question did not extend to Scotland, and that thus the case would be thrown into the law of England, as it was before the statute, if the assignees were well founded in their claims. The Judge Admiral found, "That all the arrestments founded on, which 66 were executed against the moveable estate of Forster in "Scotland, prior to the 8th of May, are effectual, unless ❝evidence shall be brought of acts of bankruptcy having "been committed by Forster prior to the said 8th of May, "and that the creditors were in the knowledge of these "acts of bankruptcy, or knew that the bankrupt was in

"solvent, or had stopped payment; and, e contrario, that "all arrestments executed upon the said 8th of May, and "subsequent, are struck at, not merely by the commission "of bankrupt, but by all acts of bankruptcy committed "prior to the date thereof."

But upon bills of advocation presented to the Court of Session by the arresting creditors, the Lord Eldin Ordinary remitted to the Judge Admiral to recall the interlocutors against the arresters, "and to find that the arrestments "were not affected by the Commission of Bankrupt, and "to prefer the complainers to the fund in medio:" (x) and on a reclaiming petition the Court unanimously adhered to the Lord Ordinary's interlocutor.

This is a case of considerable intricacy; the exclusion of Scotland from the operation of the Act of Parliament was considered to be of importance. It evidently superseded the law of the domicil. Lord Glenlee's opinion upon this subject is highly worthy of notice. He says, "It is no "doubt an indisputed point of international law, that "moveable property in Scotland, belonging to a bank"rupt in England, is transferred by an English Com"mission of Bankrupt; but to give the Commission the "effect here contended for, would be more than any "international principle of comity requires. International "law means international justice; but supposing that, by the law of a foreign country, the natives should be "preferable to all creditors, inhabitants of other countries, "it certainly would not be incumbent on our courts to give effect to such a law, because it would not be inter"national justice to do so. The present case is something "similar. The English law says, all diligences are "voided by a prior Act of Bankruptcy. This rule is, how

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(a) Yet some of the arrestments were subsequent to the date of the Commission.

"ever, restricted by the statute as to English diligences, "if not executed within two months of the Commission. "But Scotland is excluded by this Act, so that English "creditors would be on a more favourable footing than "Scotch creditors; and, consequently, to give effect to this, "would not be international justice. Besides, it would appear, that it was the understanding of the legislature, "that the retrospective effects of a Commission of Bank"ruptcy could not operate in Scotland, and that it was in consequence of this understanding that the above statute "was declared not to apply to Scotland, as being unnecessary there."

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Some of these observations of Lord Glenlee appear to be very important in regard to the law upon this subject. The rules which the Courts have adopted in questions of this nature, have been founded upon the principles, which, it is understood, should regulate the comity of nations; but if any country chooses to adopt different views upon this subject, and if those shall be sanctioned by a long train of decisions in their courts of law, shall we persist in observing towards that country the same course of decision, or shall we make an exception in regard to such nation? This is an important question in international law.

It is understood, that, in the American states, the nation, next to our own, the most commercial now in existence, though there be a difference of opinion among the lawyers of that country, as to the effects of international law regarding bankruptcy, and though there are decisions of weight in favour of the more liberal system, the preponderating authority now is, that the creditor attaching the goods of a foreign bankrupt in America, is to be preferred to the foreign assignee. (y) It appears, however, to be ad

(y) In Dr. Story's Commentaries on the Conflict of Laws (346.), the arguments on both sides on this important subject, are stated and weighed.

In Kent's Commentaries on American Law, that distinguished per