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“ 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, 66 and to find that the arrestments “were not affected by the Commission of Bankrupt, and 6 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 It evidently superseded the law of the domicil.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
(x) 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." 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
mitted in most of the cases in which assignments under foreign bankrupt laws have been denied to give a title against attaching creditors, that the foreign assignees might maintain suits in America for the property of the bankrupt. (*)
It is understood that the practice of Holland and of France, in questions of this nature, is similar to our own (a), and that equal comity upon this subject prevails in those countries as in ours. But the American courts appear to have adopted their own rule with a full knowledge of this, as well as of what had been done in the British courts. On future occasions, if American assignees shall (as they did in the cases of Maitland and Hoffman, and Morrison's Assignees v. Watt, before mentioned) (6), claim in the British courts a preference over the British attaching creditor (which, in those cases, was granted to them without inquiry), apparently they may be fairly met by this, that their own courts deny a similar comity in their country; and that therefore their subjects cannot ask for such indulgence here. (C)
son clearly lays down, that the weight of American authority is in direct opposition to the doctrines recognised in the British courts upon this subject. His own opinion had been otherwise.
In Lect. 37. vol. ii. p. 406., after stating the case of Holmes v. Remsen (4 Johnson's Chancery Rep. 460.), by which the assignees of a bankrupt, being first appointed in England, were held prior in point of right, and passed a debt in the state of New York to the English assignees of the Bankrupt, in bar of a claim by the trustees under the Absconding Act of that state; he adds, “ But whatever consideration might “otherwise have been due to the opinion in that case, and to the
reasons and decisions on which it rested, the weight of American authority is decidedly the other way; and it may now be considered as part of the settled jurisprudence of this country that personal property as against creditors has locality, and the lex loci rei sita prevails
over the law of the domicil with regard to the rule of preference in “the case of insolvents' estates. The laws of other governments have
no force beyond their territorial limits; and if permitted to operate “ in other states, it is upon a principle of comity, and only when neither " the state nor its citizens would suffer any inconvenience from the ap“plication of the foreign law. A prior assignment in bankruptcy under
a foreign law will not be permitted to prevail against a subsequent "attachment by an American creditor of the bankrupt's effects found
here, and our courts will not subject our citizens to the inconvenience “ of seeking their dividends abroad, when they have the means to
satisfy them under their own control.” And, after mentioning varions cases decided in the American courts, he adds, “and still more
recently in the Supreme Court of the United States” (in the case of Ogden v. Saunders, 12 Wheat. Rep. 213.), " the English doctrine (for “ it is there admitted to be the established English doctrine) was per
emptorily disclaimed in the opinion delivered on behalf of the majority “ of the Court."
(2) Story's Conflict of Laws, 354.
(a) Ibid. 350. Hitherto this has been little inquired into in this country.
But whatever intricacy or want of unanimity there may be in the intricate questions of foreign bankruptcy, there is none, as we have already seen, in regard to the doctrines of personal succession. In every country it appears now to be admitted, that the law of the domicil shall regulate (d); but it is equally clear, that a title must be made up by probate, by administration, or by conformation in the country in which the property is situated.
(6) Supra, p. 238.
(c) There can be no doubt that under the 3d Axiom of Huber, noticed above (p. 77.), the American courts were entitled to lay down this rule for themselves.
(d) There has always appeared to me to be this difficulty in regard to foreign bankruptcy, that, in recognising a foreign commission, and the assignment made under its authority, the decree of a foreign court is, in such cases,
admitted to have effect extra territorium. In all cases of the administration of the property of deceased persons, it is necessary to have recourse to the courts of the country in which the property is locally sitünted, to make up a title to it. I see this difficulty noticed in support of the American doctrine. (Story, 349.)
While this treatise is in the press, I.am much pleased to see, that a new edition of Dr. Story's valuable work has been published by Mr. Clark of Edinburgh.
OF CONFIRMATIONS IN SCOTLAND, AND OF PROBATES AND
LETTERS OF ADMINISTRATION IN ENGLAND, IN CASES INVOLVING QUESTIONS OF INTERNATIONAL LAW.
Although it is now clearly and universally understood that the lex domicilië is to rule in cases of intestate succession in both countries, it is equally well understood that in making up a title to administer the personal estate of a party deceased, it is necessary to have recourse to those courts which have local jurisdiction in respect of the situs of the property. When a title is once made up, the executor or administrator holds the property as a trustee for the use and benefit of those to whom the will, in a case of testate succession, or the law of the domicil, in a case of intestate succession, gives the beneficial right; whether this should be to strangers, or to the executor or administrator himself.
We have seen in a former part of this treatise that, in both countries, the clergy formerly claimed right to decide in all matters of this sort in their
ecclesiastical courts. Before the Reformation, it is to be presumed that the practice in England and in Scotland was regulated very much in the same way.
At the Reformation in Scotland, this part of the ecclesiastical jurisdiction was settled by the establishment of consistory or commissary courts. One superior consistory or commissary court, with four judges, was established in Edinburgh, by Queen Mary, in 1563. (a) This court had
(a) Balfour's Practics, p. 670.