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composition, or other special title (c). that this diversity of courts should have

It is astonishing

been found toler

able in England for such a length of time. It is to be remarked, that though these courts were tenacious of their jurisdictions, yet nothing done by one of them was of any avail out of that jurisdiction in which it was granted; and this limitation extended, not only to the inferior courts, but also to the Consistory Courts of the bishops, and the Prerogative Courts of the two archbishops. In this respect the law appears to have always been more conveniently regulated in Scotland, where a confirmation in any commissary court appears to have completed the grant. Happily these numerous jurisdictions are now in the course of being regulated; it is to be hoped that they will be arranged in such a way, that every just cause of grievance may be obviated in future.

The ad valorem fees payable to the judges and officers of court upon confirmations in Scotland, have been the subject of many statutory regulations. In addition to all the other fees of court in Scotland, in the times of episcopacy, the bishop was entitled to a twentieth part of the moveables of a person deceased, termed the Quot, because it was the proportion or quota to which the bishop was entitled for his own use at confirming; and, for a long period, debts were not to be deducted in estimating the quot. At last, by the act of 1641, c. 61, quots were declared to be a grievance, and prohibited in future. This act was revived after the restoration by the act of 1661, c. 28; and though quots were restored to bishops the year after, by the act of 1662, c. 1, they were by a posterior

(c) The peculiar jurisdictions in England and Wales, with the manorial courts exercising such jurisdiction, amount in number to nearly 300. (Report made to his Majesty on the practice and jurisdiction of ecclesiastical courts, 15th February, 1832.)

act of 1669, c. 19, ordained to be paid only out of the free gear or deductis debitis. By an act of 1701, c. 14, the act of 1661, c. 28, was revived, and quots were thereby prohibited, with a clause saving the dues of court payable to the commissaries and their clerks; and this clause was so explained in practice as to justify the demand, not only of a reasonable fee to the clerks, but a composition to the judges in proportion to the amount of the property (d). This very indefinite right remained down to a very recent period, and was only entirely abolished by the act of 4 G. IV. c. 97, s. 1.

In England, the fees payable upon the granting of probates and administrations have attracted much attention from time to time. In a former part of this treatise, we have noticed the statutes and regulations made upon this subject in England down to the 21st of Henry VIII. (e)

Some partial regulations were subsequently introduced in regard to the probates of the wills or administrations of the effects of persons dying in the naval service of the country, by the statute of the 31 G. II. c. 10. (ƒ)

It is not proposed here to enter into any particular inquiry how or by whom confirmations may be obtained in Scotland, or probates and administrations in England, in This always has been, and always must

common cases.

(d) Erskine, b. 3. tit. 9. s. 28.

(e) Supra, p. 27. et sequen.

(f) The most extravagant fees which have been the subject of regulation in either country, appear to have been those which were claimed within the archdeaconry of Richmond in the province of York. By a statute of 26 Henry VIII. c. 15., it appears that certain " parsons, vicars, and others" within that archdeaconry had been in use to take " of every person when he dieth, in name of a pension or of a portion sometime the ninth part of all his goods, and sometime the third part, to their open impoverishment." This was abolished by that act under the pain of a præmunire, and the fees were restricted to those which could be demanded under the act of the 21st of H. VIII. c. 5.

remain, subject to the regulations to be observed in the courts having jurisdiction in such matters in the two countries respectively. Our purpose is merely to inquire what has been done when questions of international law have occurred in either country in regard to the grants of such confirmations, and of probates or administrations; namely, where the grant was claimed by those who considered that they had the right of administration according to the law of the domicil of the deceased, and opposed by those who claimed such right, according to the lex loci rei sitæ.

SECT. I.

Of Confirmations in Scotland in cases of Foreign and International Succession; and on the Effect in Scotland of Titles made up in other Countries by Executors and Administrators.

IN Scotland, down to a very recent period, confirmations were required for two purposes: 1. To vest the succession. 2. To give an active title to the personal representative. If the person having the right of personal representation in a case of intestacy died before confirmation, nothing was vested in the person having the right; but the same devolved to and became vested in the other next of kin, who obtained confirmation, to the exclusion of those who died before confirming. (g) But this did not extend to the jus relicta of a wife, or the legitim of children, which were vested without confirmation, as falling under the law of the communion of goods in the married state. (h)

(g) Probably this rule may have been to enforce confirmations, and * with an eye to the quots; it has always been unknown in England, where the right vests ipso jure; and probates and administrations were only required to give an active title.

(h) Erskine, b. 3. tit. 9. s. 30.

Several cases have occurred in Scotland, upon points of international law, in regard to the effect of the titles made up by executors or administrators in England, or Ireland, or in foreign countries; but no rule appears to have been laid down in Scotland to meet the case of one party claiming confirmation as having right to such confirmation according to the law of the domicil, in opposition to another claiming such right according to the law of Scotland.

There exist no reports of what has been decided in the ecclesiastical or consistoral courts in Scotland, in cases that may have been disputed before them in regard to the granting of confirmations either in cases of testate or intestate succession. It is to be presumed, that during the length of time that these courts existed, important questions of international law must have occurred before them upon these subjects. Probably these are now to be consigned to oblivion.

It is only in the common law courts in Scotland that we find any thing connected with our present subject of inquiry. In these there are cases reported from time to time, in regard to the effect of probates or administrations taken out in England or in Ireland, and the titles made up by executors or administrators in foreign countries, when founded upon, in the courts of common law in Scotland.

The earliest case which appears to have occurred in the Court of Session connected with this subject, was that of Lawson v. Kello, 16th February 1627. (i) Anna Lawson, an Englishwoman, was the executrix named in the will of her husband, Alexander Lawson, indweller in London. After his death she obtained probate of the will in London, and thereupon sued Bartel Kello, who was indebted to her late husband upon bond, in the Court of Session in Scotland.

A defence was made to this action, that no special inventory was given up nor contained in the probate. According to the report," the Lords sustained the action at the instance of the said executrix, and her procurators constituted by her, to pursue upon that bond and testament, albeit there was no special inventory given up, nor contained in the said testament; the pursuer proving that the form of England was to confirm testaments in that manner, and that the same would furnish actions to the executors of the defunct against their debtors, albeit no special inventory, nor particular mention of the debt acclaimed, were in that testament; the pursuer showing the bond to qualify the debt, and that she was confirmed executrix to the defunct; which the Lords found sufficient, this being proven; or otherwise they sustained this pursuit, the pursuer finding caution to warrant the defender of the debt at all hands, who might claim the same from him; the option of the which two, viz. either to prove the custom or to find the caution, they gave to the pursuer, and that one of them should suffice to maintain the action; and this English testament was sustained to produce this action, at an English woman's instance in this realm; albeit it was alleged, that no writ could produce action in this realm, which dissented from the form of writs allowed and required by the law of the kingdom where the pursuit was made, which was repelled; caution being found ut supra."

But the litigation upon this small matter did not end here. (k) Alison Lawson, sister of the deceased, was confirmed executrix-dative to her late brother for the same debt; and she also claimed it from Kello the debtor. He raised a double poinding against the two claimants in the Court of Session; and the question as to the preference

(k) The bond of Kello appears to have been only for 20l. sterling.

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