branch of the law was that of Lashley v. Hog, which has already received a large share of our attention, in another part of this treatise. (x)

Thomas Hog, in 1789, propounded for probate in the Prerogative Court of Canterbury the whole testamentary instruments executed by his late father, who died domiciled in Scotland, in which he was named sole executor. (y)

(x) Lashley v. Hog, suprà, p. 126. 3 Haggard, Eccles. Rep., 415. (in notis).

The Prerogative Court of Canterbury is usually resorted to in cases of probates and administrations from Scotland, particularly where the deceased had money in the British funds. The Bank of England has always received, and acted on, such probates and administrations granted by the Prerogative Court of Canterbury.

In 1828, a question arose in regard to a will of Thomas Dickson, formerly of Drury Lane, but last of Northfield, in the county of Dumfries, deceased. The testator had some leasehold property in Drury Lane, some bond and other debts in Westminster, and 107. Long Annuity in the British funds, and his will was proved, on the 18th of March, 1828, in the Consistory Court of the Bishop of London, by James Scarth, the surviving executor.

When the probate was tendered at the Bank of England, they refused to transfer the Long Annuity belonging to the testator and standing in his name, on the authority of such probate.

Scarth, the executor, thereupon served the deputy registrar of the Consistory Court of the Bishop of London with a monition, to bring into and leave in the registry of the Prerogative Court, the probate obtained in the Bishop's Court. The registrar appeared under protest, insisting that the probate so granted was legal and valid.

After argument in the Prerogative Court, the judge (Sir John Nicholl) holding the probate obtained in the Consistory Court to be legal and valid, allowed the protest, and dismissed the deputy registar from the monition. (Scarth v. Bishop of London, Trinity, 1828; 1 Hagg. Eccles. Rep., 625.)

The reporter adds, that after the judgment given in this case, the Bank of England acquiesced in the transfer of the 107. Long Annuities, upon the original probate taken in the Consistory of London.

(y) In regard to testamentary instruments executed in Scotland, the practice generally is to register such wills or testamentary instruments in the books of the Court of Session, or of any court competent to the registration of such writings, in that country; and the ecclesiastical

This was opposed by Mrs. Lashley, the daughter, on the same grounds upon which she contended, in the Court of Session, and in the House of Lords, that these testamentary instruments were invalid, namely, that the testator had exceeded the powers which, according to the law of his domicil, he was entitled to exercise in these testamentary instruments; and that while he had attempted to dispose of his whole personal estate by these instruments, she was entitled to half of such personal estate in the name of legitim. But, notwithstanding this opposition, a general probate was granted by the judge, Sir William Wynne, to the executor, in Michaelmas Term 1789. This was before any decision had been pronounced in the causes in the Court of Session and House of Lords.

Mrs. Lashley appealed from this judgment to the Court of Delegates, and prayed the Court to reject the allegation, or to suspend the consideration of the admission thereof, till the proceedings still depending in the Court of Session were determined. But on the 4th of December, 1790, the Court of Delegates, without hearing the counsel for Mr. Hog, affirmed the decree of this Prerogative Court with the costs of the appeal, and retained the cause.

Witnesses having been examined by Mr. Hog, but no plea given in by Mrs. Lashley, the judges, after hearing counsel for Mr. Hog only, on the 8th of February, 1793, pronounced for the will; but, at Mrs. Lashley's prayer,

courts in England accept the office copy (termed an extract in the Scotch law) as evidence of the originals; and, retaining the office copy, they issue their probate thereof accordingly. No inquiry is made, in the common case, whether a confirmation has been previously obtained in Scotland or not. This practice has passed under my own observation for the last forty years.

In Scotland the probate, or an exemplification, or office copy of it, where the original will cannot be had, is held sufficient for the purposes of obtaining confirmation in that country.

directed an act on petition to be entered into, as to whether a general or limited probate should issue.

Mrs. Lashley in her petition stated, that by decisions in the Court of Session, affirmed in the House of Lords (z), she was entitled to a moiety of the whole personal estate of her father in her own right; and that any disposition of such moiety by her father was null; and that he had no power to appoint an executor in respect thereto, but that he must be considered, in point of law, to have died intestate as to the same. She, therefore, prayed that the probate might be limited to one moiety of the personal estate of the deceased within the province; and that administration might be granted of the other moiety to Mr. and Mrs. Lashley, on security to pay a proportionate share of such debts as might be legally chargeable thereon.

On the other side the decrees of the Court of Session and judgment of the House of Lords were admitted; but it was contended that, by law, the respondent was entitled to a general probate as sole executor, whatever might be the effect or operation of the will, in regard to the duty or office of the executor so appointed. The judges delegates having heard counsel on both sides, on the 14th of June, 1796, condemned Mrs. Lashley in the costs, and decreed a general probate to Mr. Hog.

It appears to be doubtful, whether this be consonant to the principles, which have been since adopted in the ecclesiastical courts in England. The Prerogative Court and the judges delegates appear to have considered, that Mrs.

(*) On the 7th of June, 1791, the Lord Ordinary, in Scotland, decided in favour of Mrs. Lashley on the lex domicili, and on her right to legitim; on the 29th of November, and 23d of December, 1791, the interlocutor of the Lord Ordinary was adhered to by the Court; and on the 7th of May, 1792, these decrees were affirmed in the House of Lords.

Lashley's claim for legitim, as forming part of the estate of her deceased father, could only be obtained through a representation to him, and therefore granted a general probate to Mr. Hog. In this case of Lashley v. Hog, a discussion appears to have occurred as to the form of the instruments: it was contended that these were not of a testamentary nature, but in the form of deeds inter vivos. This argument was founded on a misapprehension as to the practice in Scotland in cases of this nature. The will simply has almost been banished from Scottish conveyancing, and is superseded by the testamentary disposition in the form of a deed inter vivos, and reserving the grantor's liferent and powers to him to alter.

Cases of this kind are of rare occurrence, and the next in point of date was that of Nasmyth v. Hare and others, in the Prerogative in Court of Canterbury, in Michaelmas term 1821. (a) In that case a question arose in regard to the validity of the testamentary writings of the deceased. Dr. James Nasmyth was a native of Scotland. He went in early life to India: he returned to Scotland in 1798, and from that time till 1812, he usually resided at Hope Park, near Edinburgh. In 1812 he came to London; and, though he intended from time to time to return to Scotland, he remained in London till his death, which took place on the 7th of December, 1813.

The deceased had large personal property within the province of Canterbury: his testamentary writings were propounded for probate, by the asserted executors, in Hilary term 1815. Sir John Nicholl expressed himself as

(a) 2 Addams, 25. (in notis). The only matter connected with this important case, which is reported in the Scotch decisions, is that regard ing the right of the executors-nominate in Scotland to appropriate onethird of a residue undisposed of under the act of 1617, c. 14.: this was found not to be in desuetude. (Fac. Coll., 17th Feb. 1819.)

inclined to think that the papers had not legal validity according to the English law. But it appearing, on the face of these, that the deceased was a domiciled Scotsman, and that an action was depending in the Court of Session in Scotland, in regard to the validity of the same instruments, the Court suggested the propriety of suspending proceedings till that action was decided, intimating that it might feel it its duty to pronounce for the validity of the testamentary papers, or that the deceased had died intestate, according as the courts of Scotland should determine that question, either upon general principles, or upon principles applicable to the subject, if any, peculiar to Scotch jurisprudence.

Proceedings in the Prerogative Court were accordingly suspended. But the validity of the will and codicils having been pronounced for, by three interlocutors of the Lord Ordinary in Scotland of the 18th of May, the 9th of June, and the 14th of November, 1815, and an interlocutor of the second division of the Court of Session of the 7th of June, 1816, the next of kin declined to make any further opposition to the probate in England, and the same was thereupon decreed by the Prerogative Court to the executors, in the second session of Michaelmas term 1816.

Subsequently to this, the next of kin appealed to the House of Lords from the judgments of the Court of Session; and their appeal came to a hearing on the 27th of June, 1821, when the interlocutors of the Court of Session were reversed, and it was found that the asserted will and codicils were of no effect or avail in law, as testamentary dispositions.

A proctor for the executors thereupon brought into the Prerogative Court the probate formerly obtained, and consented to the same being revoked; and the Court, in the fourth session of Michaelmas term 1821, proceeded to revoke the probate obtained in 1816; and, finally, to decree