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being attested by the clerk, had all the requisites "of a formal probated writ.”

The defenders replied, that though it were probative, it could not be a title in Scotland, unless the pursuers had applied for a confirmation in Scotland, as was found in Rob v. French. (x)

The pursuers duplied, that though this were true as to administrations ab intestato, which can, indeed, "go no further than the jurisdiction of the granter; yet the administration here proceeding upon the defunct's testament, it may be confirmed in any judicature, with respect to all the defunct's goods;" and they referred to the decision in Lawson v. Kello (y), where the Court sustained action at the suit of the executrix on an English probate. As to the case of Rob v. French, they stated that the specialty there was that the executor, confirmed in England, was competing, and renounced to be executor; and, therefore, the Court found a confirmation in Scotland to be necessary.

"The Lords sustained the title libelled on, as a sufficient title in this process, the pursuers confirming before extract."

In the case of the Earl of Breadalbane v. Innes and others, Court of Session 1734 and 1735, House of Lords, 11th of February 1736 (≈), it was decided that an executor creditor, confirmed in Scotland to a person deceased, could not in that country recover a debt due to that person, there having been already a probate of his will granted by the Prerogative Court of Canterbury to an executor named in the will.

Major Sinclair by his last will and testament appointed Ann Tibo his sole executrix: he died in London in 1718,

(x) Supra, p. 255.

(y) Supra, p. 253.

(z) 1 Craigie and Stewart, 181.

and the executrix duly proved the will in the Prerogative Court of Canterbury. (a)

William Innes being a creditor of Major Sinclair to a considerable amount, was afterwards confirmed executor creditor in Scotland, and thereupon raised an action against the Earl of Breadalbane, for payment of a sum of 100%. and interest, as contained in a bond granted by his Lordship to the deceased. The money had been lent in London, and the bond was granted there.

The Earl pleaded in defence, that by Major Sinclair's will Ann Tibo was named his executrix; that she had proved the will in the proper court in England; and, therefore, that he could not be compelled to pay the contents of the bond to the pursuers, until Ann Tibo the English executrix was made a party to the suit; for, as the bond itself was not produced, or ready to be delivered upon payment, he might be sued anew by her in England, where he sometimes resided, and compelled to pay the debt over again.

It was answered that, as the executrix resided in England, she could not be compelled to become a party to the suit; and that the pursuer was willing to grant a discharge with absolute warrandice.

The Court repelled the defences, and decerned the pursuer, upon payment, to grant a discharge to the Earl with absolute warrandice. But upon appeal to the House of Lords, it was ordered and adjudged, that the interlocutors should be reversed, and that the appellant should be absolved from the instance or libel.

It does not appear upon what grounds this case was decided it was probably upon this, that where there was

(a) The domicil in this case does not appear to have been inquired

into.

an executor nominate, as in this case, a confirmation to a creditor without making her a party was inept.

In the case of Clerk v. Brebner, 20th December 1759 (b), a question arose in regard to the effect of English letters of administration as a warrant to sue in Scotland. In 1755 Brebner and Co. purchased six hogsheads of vinegar from Fletcher, a merchant in London.

On the death of Fletcher, Mrs. Pott, his sister, obtained letters of administration of his estate and effects from the Prerogative Court of Canterbury, and granted a power of attorney to John Pott, her husband.

Pott drew a bill upon Brebner and Co. for 121. 4s., as the price of this vinegar, payable to John Clerk. This was protested for non-acceptance, and a process was thereupon brought against Brebner (his partner having failed) before the Sheriff of Aberdeen, who gave decree against Brebner.

Brebner suspended, insisting that the process had been brought before the sheriff, without the pursuer's instructing a sufficient title, as the letters of administration had been at no time produced: 1. That such letters of administration, though they may have been sustained ad inchoandum litem, had not hitherto been sustained as a sufficient title to recover payment in Scotland, or to grant a valid discharge of the Scotch debt. It was answered, that there had been no objection to the title in the inferior court; - and that, therefore, such objection came too late. 2. That the debt was contracted in England; and, therefore, that the administration formed a good title. 3. That Fletcher had in a letter agreed to pay the debt to Pott. The Court" found "the letters orderly proceeded, and expenses due; but "ordained the charger to confirm before extract."

(b) Fac. Coll.

In this case, the Court apparently decided in terms of the previous case of Wardlaw, sustaining the suit on the foreign title, but directing the title to be made up in Scotland, before the decree was extracted.

For a very considerable period no further cases connected with this branch of the law appear in the reported decisions of the courts in Scotland. The important case of Mrs. Mary Wardlaw Cuming Egerton v. Duncan George Forbes, however, occurred in 1812. (c) It arose out of the following circumstances:

In January 1803, Lady Cuming, widow of Sir John Cuming, died at Bath; but her domicil, at the time of her death, was in Scotland. She was then possessed of moveable property, partly in Scotland, partly in England, and, inter alia, of 53331. stock in the 3 per cents.; and, as she died intestate, the whole devolved on her six children, one of whom (afterwards Mrs. Egerton) was at that time married to Arthur Forbes of Culloden, and resided with him. in Inverness-shire.

Colonel Cuming, another of Lady Cuming's children, was in England at the time of his mother's death. He took out letters of administration to the deceased in the Prerogative Court of Canterbury, as one of her next of kin. In virtue of these he took the management of the property in England, on behalf of all who were interested in the succession. He drew half a year's dividends on the stock, and granted a power of attorney to a house in London to turn the property in England into money.

About four months after the death of Lady Cuming, Mr. Forbes of Culloden, Mrs. Egerton's first husband, died, without any further steps taken for making up a title to Lady Cuming's succession, or obtaining actual posses

(c) Fac. Coll., Nov. 27. 1812.

sion of any part of her funds. He was succeeded by his son Duncan George Forbes, as his heir and executor. His widow was afterwards married to Mr. Egerton of London.

In these circumstances a question arose between Mrs. Egerton and Duncan George Forbes, concerning the right to that share of Lady Cuming's fortune which had devolved to Mrs. Egerton in right of her mother. Mrs. Egerton insisted, that during the lifetime of her first husband a proper title had not been made up to vest her share in him; and that this share, of consequence, belonged to her in her own right. It was maintained, on the other hand, by Duncan George Forbes, that this share fell under the jus mariti of his father, and devolved upon him as his father's representative.

Mrs. Egerton thereupon brought her action in the Court of Session, containing a declaratory conclusion of her right to this share, and concluding against Colonel Cuming for payment thereof to her. In this action Mr. Forbes and Colonel Cuming appeared as defenders.

The Lord Robertson Ordinary, in June 1809, found, "that the proper domicil of the late Lady Cuming, the pursuer's mother, was in Scotland; that as Lady Cuming died intestate, the succession to her moveable estate, wherever situated, must be regulated by the law of Scotland; and that the pursuer, as one of the nearest of kin to her deceased mother, has right to an equal share with the other nearest in kin of her free moveable estate." (In so far there appeared to have been no doubt between the parties.), But he also found, "that the pursuer had not made up titles to her share of her mother's moveable estate by confirmation, nor had obtained possession of any part thereof prior to the decease of the late Arthur Forbes; therefore he repelled the defences of Duncan George Forbes, and decerned against the other defender, Lieutenant-Colonel

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