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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. (x)

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

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.

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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 various 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 peremptorily disclaimed in the opinion delivered on behalf of the majority "of the Court."

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(z) Story's Conflict of Laws, 354.

(a) Ibid. 350. Hitherto this has been little inquired into in this country.

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)

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.

(b) 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 situated, to make up a title to it. I see this difficulty noticed in support of the American doctrine. (Story, 349.)

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While this treatise is in the press, I.am much pleased to see, new edition of Dr. Story's valuable work has been published by Mr. Clark of Edinburgh.

CHAP. IX.

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 domicilii 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 proper 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.

a local jurisdiction of its own within certain limits, and a right of reviewing the proceedings of all inferior commissaries. The Court of Session had the right of review of the decrees of the commissaries of Edinburgh. Upon the restoration of episcopacy it was enacted, by the act of the Scottish parliament of 1609, c. 6., that, of the commissaries, of Edinburgh, two should be named by the Archbishop of St. Andrews, two by the Archbishop of Glasgow; and the other bishops had the power of appointing commissaries within their respective dioceses. At the Revolution, the patronage of these offices devolved to the crown.

Confirmations of testaments, and appointments of executors dative, were to be granted by the commissary ubi defunctus habuit domicilium. When a person resided abroad, the commissaries of Edinburgh had jurisdiction in regard to the confirmation of his personal estate in Scotland. The person obtaining confirmation in any of these respective courts, whether the executor nominate, the executor dative, or the executor creditor, had, by obtaining such confirmation, the universal right of administration throughout Scotland conferred upon him, and as such could sue in any of the courts of law of that country (b).

Thus the jurisdiction of the commissaries remained down to a recent period. But by an act of the 4 Geo. IV. c. 97, the whole constitution of these courts was altered; the commissariot of Edinburgh was declared to extend over the sheriffdoms of Edinburgh, Haddington, and Linlithgow ; the inferior commissariots were abolished; every county and stewartry in Scotland was to form a commissariot, with the sheriff or stewart for judge; and the right of review of the proceedings of all the inferior courts was taken from the commissaries of Edinburgh, and vested in the

(6) Erskine, b. 3. tit. 9. s. 29. Hall v. Macaulay, 19th Jan. 1753, Fac. Coll.

Court of Session. By another recent act of the 11 G. IV. and 1 W. IV. c. 69, this matter was further regulated. The commissariot of Edinburgh was restricted to the sheriffdom of Edinburgh, and every jurisdiction of a more extensive nature, heretofore possessed by the commissaries of Edinburgh, was entirely to cease, save and except such as regarded the confirmation of testaments of persons dying out of Scotland, having personal property in that country, which jurisdiction was reserved to this court. the other jurisdiction of the commissaries of Edinburgh, was devolved upon the Court of Session. Vacancies occurring in the offices of the judges of the Commissary Court of Edinburgh were not to be filled up; and as soon as vacancies should take place in the whole of such offices, the powers and jurisdiction of the court were to be vested in the sheriff of Edinburgh.

All

In England, probates of wills and administrations of intestates' effects have been in use to be granted by a very great variety of courts:-1. Where a person dying had bona notabilia, or goods to the extent of 5l., in more dioceses than one, wills were to be proved and administrations granted in the Prerogative Court of the Archbishop respectively, within whose province the person dying had such bona notabilia. Of these prerogative courts, that of chief importance, and by far the greatest magnitude in point of business, has been the Prerogative Court of the Archbishop of Canterbury, sitting in Doctors' Commons in London. The Prerogative Court of the other archbishop is held at York. 2. Probates and administrations were generally granted in the Consistory Court of the Bishop, within whose diocese the deceased had his residence. 3. But they were also granted by the judges of a vast variety of peculiar jurisdictions, of deans, archdeacons, prebendaries, rectors, vicars, lords of manors, and others, exercising ecclesiastical jurisdiction by prescription,

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