between the widow suing under the English probate, and the executrix-dative, came to be decided in the Court of Session on the 15th of January, 1629. (1)

"The two executrices coming to dispute which of them should be preferred, the first obtruded her nomination approved in the Prerogative Court of Canterbury; in respect whereof non locus erat dativo; like as she offered to confirm the same debt here at home. The other alleged that she, being executrix confirmed, should be preferred; and for the nomination, no respect should be had to it withal, it having been done in England; and for her offer to confirm, let her do it; but she must reduce the other dative. The Lords preferred the executrix-dative, she finding caution to refund it back again to the executrixnominate, if she should happen to reduce the dative hereafter."

It is difficult to see upon what grounds this case was decided, in either instance. The executrix-nominate apparently was entitled at once to have had the decree-dative superseded, as granted per incuriam. But still a confirmation in Scotland would be necessary upon her part; and the English probate was not of itself held a sufficient title

to sue.

In the case of Rob v. French, 25th of February, 1637 (m), Thomas French, a servitor to the King's Majesty in England, made his testament in Scotland, and took it with him to England, where he died. His testament contained legacies to John Rob and others. The testament was proved in the Prerogative Court of Canterbury by Robert

(1) Reported by Spottiswoode, Brown's Supplement, vol. i. p. 162. The case as here reported, for which we are indebted to Mr. Brown at a very recent period, totally does away the import of the former report, which alone had been previously known.

French, clerk of Kirkcaldy, the executor-nominate; “but” (as is noticed in the Report) "no inventory given up or contained therein."

Upon this testament so proved in England, the legatees sued the executor in Scotland for payment: but "the Lords would not sustain process upon this testament confirmed in England, until the time the legatees should confirm a testament in Scotland, seeing the executor was here compearing and renouncing to be executor."

This appears also to be a case of some difficulty; but it was found that a title must be made up in Scotland, before the Courts would sustain the action.

In the case of Brown and Duff v. Bisset, 18th of July, 1666 (n), a question occurred in regard to the personal estate of Andrew Duff, a native of Scotland, who had died resident as a merchant in Poland. A debt of 600 guilders was due on bond to the deceased by James Brown, burgess of Aberdeen; and the widow and daughter of the deceased having assigned this bond to William Bisset, he raised an action upon it in the Court of Session in Scotland against the representatives of Brown the debtor; and produced his assignation, and a certificate under the common seal Civitatis Pucensis, certifying that the parties assigning were the wife and daughter of the deceased, and that as such they had a right to his moveables by the law of that place.

The pursuer contended, that there was a sufficient right without a confirmation in Scotland; and referred to the act of 1426. c. 88. (o), and to the previous case of Lawson

(n) Stair's Dec., vol. i. p. 398. Dirleton, No. 21. p. 10. Newbyth MS. Morrison, 4498. There is some confusion in the names, in the different reports.

(0) Supra, p. 78.

v. Kello. (p) The defender answered that it was otherwise decided in the case of Rob v. French; and that there was no reason that those that lived out of the country animo remanendi, should be in better condition than those who resided in the same, and behoved to confirm and pay the quot."

According to Stair, "the Lords found that the testament behoved to be confirmed by the commissaries of Edinburgh; for having considered the old act of parliament, they found that the point there ordered was, to what judicatures the merchants going abroad to trade should be liable, and that such as went abroad not animo remanendi should be subject to the jurisdiction of that place where their testament would be confirmed (viz. where they had their domicils), but those that went out of the country to remain are excepted; but nothing expressed where their testaments should be confirmed; and for the decision (q), the point in question was not, whether a confirmation in England was valid, but whether a confirmation without an inventory was valid; and, therefore, seeing nothing was objected against the confirmation itself, the Lords did justly find, that the wanting of an inventory in an English confirmation, where that was the custom, did not prejudge it; neither is the case determined by the decision betwixt Rob and French, in respect that the executor having confirmed in England, and rather being confirmed by the legators, would not own the confirmation, but renounced the same; and, therefore, the Lords found no consuetude or decision in the case, but determined the same ex bono et æquo."

(p) This must have been to the case of Lawson and Kello, as first noticed and reported by Durie, supra, p. 253.; not the posterior case reported by Spottiswoode. There is an error in printing the report in Stair; apparently the words "rather being confirmed by the legators," should have been " after being sued by the legators."

(q) Lawson v. Kello, supra, 253.

S

The report in Dirleton merely notices the import of the decision: "It was found, nemine contradicente, that a stranger residing in Holland (r) animo morandi, or elsewhere, though by the law of the place his nearest of kin without confirmation has right to all goods or debts belonging to him; yet if the debtor's goods be due by Scotsmen, or be in Scotland, they cannot pursue for the same, unless the right thereof be settled upon them according to the laws of Scotland, by confirmation if they be moveables, or by a service if they be heritab1 e."

This case appears to have been decided upon sound principles.

In the case of Trent and Brown v. Duff, 11th of November 1692 (s), an English probate was held to be a sufficient title to receive a debt due in Scotland. The circumstances are briefly and very indistinctly stated by the reporter. William Duff, in Inverness, owed a sum on bond to Colonel Man. After Man's death, Duff paid the debt to Man's daughter, who had taken probate of his will in England, but there had been no confirmation in Scotland. Trent and Brown (who had some interest in this bond, the nature of which does not appear,) sued Duff, the debtor, in the Court of Session. Duff pleaded in defence the payment to the English executrix, and her discharge.

The pursuers insisted that an English probate was not a sufficient title to uplift sums lying in Scotland, for "both mobilia et immobilia sequuntur legem istius loci ubi sunt. The Court assoilzied Duff, but in regard the payment was after the intimation of the right made to James Brown, they modified 47. sterling to be paid to him for his expenses in this process."

(r) Apparently a mistake for Poland.

Fountainhall Decisions, Brown's Supplement, p. 2.

The case is so indistinctly stated in the report, that little can be made of it, and it can scarcely be founded on as an authority.

Another case occurred upon this subject, Wardlaw v. Maxwell, 21st of January 1715. (t) Jean Wardlaw, at her marriage with Maxwell of Coull, got an obligement from Maxwell of Orchardton, and another from her husband, to pay her 20l. a-piece yearly after her husband's death. She surviving him, made her testament in Ireland, leaving the by-gones of these annuities to Catherine Wardlaw. This will was proved in Ireland; and the probate bore, that the will was subscribed in the presence of three witnesses, whereof two were women, and one subscribed by initial letters only.

Catherine pursuing the representatives of Orchardton and Coull, various defences were made:- 1. That the testament was null, because women could not be sustained as witnesses in Scotland, "yea, non constat, that they are sustained in England;" 2. Because the original testament was not produced, but only an Irish writ of administration (u), which was not subscribed by any person.

The pursuers answered, 1. That the law and custom of each place must regulate as to the solemnities requisite on subscribing wills; at least, with respect to moveables; and that such was the custom of England was notour, and needed no probation. 2. That the testament produced was authentic from the records of the diocese where the principal testament was probated; "that the principal testament behoved to be probated in Ireland, and must remain as the warrant for this probate ;" and that the probate produced, having the office seal appended, and

(t) Bruce, No. 36. p. 45. Morrison, 4500.

(u) I have repeatedly observed that down to this day the difference: between probates and administrations is not, in general, distinctly known in Scotland. This appears frequently in the proceedings of the courts in that country.