dom, by a British subject (whatever may be the domicile of such person Wat the time of making the same, or at the time of his or her death), 'shall, as regards personal estate, be held to be well executed,' 'if made according to the forms required,' (1.) 'either by the law of the place where the same was made,' or (2.) by the law of the place where such person 6 was domiciled when the same was made;' or (3.) 'by the laws then in force in that part of Her Majesty's dominions where he had his domicile of origin.'

By sect. 2, 'every will and other testamentary instrument made within 'the United Kingdom by any British subject (whatever may be the 'domicile of such person at the time of making the same, or at the time of his or her death) shall, as regards personal estate, be held to be well 'executed, if the same be executed according to the forms required by 'the laws for the time being in force in that part of the United Kingdom 'where the same is made.'

And by sect. 3, 'no will or other testamentary instrument shall be held to be revoked, or to have become invalid, nor shall the construction thereof be altered, by reason of any subsequent change of domicile ' of the person making the same.'

These enactments will meet all the difficulties above adverted to, in cases to which the Act applies.

Any question in reference to wills or testamentary instruments regarding personal estate, made by parties who died before the date when the Act came into operation (6th August 1861), is matter of law rather than of Conveyancing, and need not be discussed here. These points will be found elaborately argued in the case of Purvis. In that case a person, who was born in Scotland, but had acquired a domicile in the Netherlands of India, made his will in India, and according to the Indian forms, whilst he was domiciled there. Subsequently he re-acquired a Scotch domicile, and died a domiciled Scotchman. Lord Benholme, Ordinary, and afterwards the Court, sustained the will as valid, in respect to personal estate in Scotland belonging to the testator at the time of his death, and the case does not appear to have been appealed. A corresponding decision had previously been pronounced by Lord Ardmillan, Ordinary, in the case of Fleming v. Young, which was very nearly parallel to Purvis's, but which was compromised before being disposed of in the Inner House. I need only add, on this subject, that foreign jurists appear to be very much divided on this question; and that Justice Story2 comes to a conclusion different from that arrived at by our judges.

I shall have occasion, when on the subject of the completion of titles, by the next of kin of persons deceased, to the deceased's personal estate, to call your attention to the Act 24 and 25 Vict. cap. 121, entituled 'An ( Act to amend the law in relation to the wills and domicile of British 'subjects dying whilst resident abroad, and of foreign subjects dying ' whilst resident within Her Majesty's dominions.' This Act was passed 2 Story's Conflict of Laws, $$ 464-473.

1 Purvis, 23d March 1861, 23 D. 812.

on the same day with the Act of which the provisions have been fully quoted above.

RELATE TO

ESTATE ONLY;

The case of Purvis, and the Act 24 and 25 Vict. cap. 114, have THESE ACTS reference to personal estate only. With regard to heritable estate in WILLS OF Scotland, the rules of law are clear and beyond dispute. Mortis causâ PERSONAL conveyances of such estate require, as already stated, to be executed according to the forms prescribed by the law of Scotland, in reference generally to deeds affecting heritable estate; the rules as to which have. already been explained. But when a domiciled Englishman has conveyed heritable estate in Scotland to trustees, by a formal disposition duly executed according to the law of Scotland, and referring to a will DIRECTIONS TO made, or to be made, for declaring the purposes to which such estate is DISPOSAL OF to be applied, such disposition and will taken together-the will being duly executed, and duly referring to the trust-disposition--will be effectual to convey the heritage for the purposes so declared.1 It is to be observed, however, that the above Act has no operation as regards wills or other writings, viewed as directions for the conveyance or disposal of heritage in Scotland. The law as affecting such wills or writings remains unaffected by the Act.

As already stated, personal contracts and personal obligations, in order to be available elsewhere, must be valid according to the law of the place where they are executed. A party resident in England made an indorsation there of an account alleged to be due to him by Scotch debtors, but not contracted in Scotland. Such indorsation would apparently have been held effectual by the law of Sootland, as a mandate, if made in Scotland, but was null according to the English law. It was found inoperative as a title to sue in a Scotch Court. The question whether, in point of fact, a foreign private deed is or is not executed according to the law of the place where it is made, is settled by obtaining an opinion on that point from eminent counsel of the country where the deed was executed. In proof of the authenticity of foreign official documents, a certificate is necessary that the subscriber holds office as stated, and is the proper party to issue or authenticate the document. This certificate must be obtained from a British consul, or the Mayor of the town, or a notary-public.3 We are, however, in the habit of admitting as probative, and as conferring a title to sue in Scotland, English probates and letters of administration, without such evidence; but before extract it will be necessary to obtain confirmation in Scotland," or the equivalent introduced by the Confirmation and Probate Act, 1858,'6 viz., the commissary clerk's certificate that the probate has been produced in his Court, and a copy deposited with him.

And here it may be proper to notice that an English or Irish com

1 Ker, 24th Feb. 1829, 7 Sh. 454; Cameron, 19th May 1831, 9 Sh. 601; affirmed 9th Aug. 1833, 7 Wil. & Sh. 106.

2 Tayler, 16th July 1847, 9 D. 1504.

3 Disbrow, 27th Nov. 1852, 15 D. 123.
4 Clerk, 20th Dec. 1759, M. 4471, 5
Br. Sup. 369.

5 Stewart, 21st Nov. 1826, 5 Sh. 29.
6 21 & 22 Vict. c. 56, s. 14.

TRUSTEES FOR

LANDS CAN BE
GIVEN BY WILL.

mission of bankruptcy gives the assignee (equivalent to the trustee in a sequestration in Scotland) right to the whole estate of the bankrupt, heritable as well as moveable, situated in Scotland; the trustee in a Scotch sequestration having corresponding rights as to the bankrupt's estate situated in England, Ireland, or Her Majesty's other dominions. This is specially provided by the Bankrupt Acts for each of the three kingdoms respectively, and, on the principle of the comitas due to foreign countries, an American commission of bankruptcy carries to the assignee the whole of the bankrupt's moveable estate situated in Scotland.2

In regard to the interpretation of such personal obligations or contracts as we have just been considering, the general rule is that they are to be construed according to the lex loci contractus. So in a case between a wife and the trustee on the bankrupt estate of her husband, as to the jus mariti over property devised to her under an English deed, which apparently excluded that right, it was held that the question of construction fell to be decided by the laws of England.3 So also, when a marriage took place in England between natives of Scotland, and provisions were settled on the wife by deeds in the English form, it was held that the legal import of the deeds fell to be regulated by the law of England. And even when foreign deeds contained stipulations, as to payment of interest, which could not have been made by the laws of this country as they then stood, the stipulations have been allowed effect when there was no suspicion of an attempt to evade our laws. In Campbell's case, a summons, raised in Scotland for payment of a debt contracted in South Carolina, concluded for payment of the debt, 'with the lawful interest,' which was held to mean 7 per cent., being the rate current on similar debts in South Carolina, as shown by the opinions of counsel produced in the cause. On the other hand, if, by the lex loci, the debt is one on which no interest is allowed, as in England in the case of a book debt, effect will equally be given here to such law. And where a lady had, in an antenuptial contract of marriage, entered into with a Scotchman abroad, but in foreign form, accepted a jointure in lieu of every right she might have over the funds of her husband, she was held to have thereby validly renounced all right of terce or aliment out of her husband's estate in Scotland."

5

Questions of law arising upon deeds executed out of Scotland, and which are to be construed according to the law of the place where such deeds are made, required formerly to be solved by obtaining the opinion. of counsel of the country where the deed was executed, and as to foreign

The English Act, 24 & 25 Vict. c.
134; the Irish Act, 20 & 21 Vict. c. 60;
and the Scotch Act, 19 & 20 Vict. c. 79.
2 Maitland, 4th March 1807, M. App.
Bankrupt, 26.

3 Cross, 14th May 1830, 8 Sh. 746.
4 Ramsay, 11th July 1833, 11 Sh. 967.

5 Campbell, 15th Feb. 1809, F. C. See also Wilkinson, 28th June 1821, 1 Sh. 90.

45.

6 Gillow and Co., 21 May 1824, 3 Sh. 7 Countess of Findlater, 8th Feb. 1814, F. C.

countries, the rule remains the same. But, as to Her Majesty's dominions, the Act of 1859,1 to afford facilities for the more certain ascertainment

of the law administered in one part of Her Majesty's dominions, when 'pleaded in the Courts of another part thereof,' makes provision for obtaining the opinion on such questions of law from one of the Superior Courts in the part of the Queen's dominions the law of which it is desired to ascertain. This is done by submitting a case, adjusted at the sight of the Judges of the Court where the cause is depending, to the Judges of the Superior Court in that part of the Queen's dominions the law of which is to be ascertained, for their opinion, which opinion, when obtained, forms the rule in reference to the point to which it relates. The decision given by the Court, which seeks the opinion of another Court, in terms of such opinion, is subject to review, as far as the judgment of the Court by which the opinion is given is so. And it must be truly a point of law, proper to the foreign country, that is resolved in this manner. If the interpretation is not dependent upon the foreign law, or upon its technical rules, but is to be dealt with according to the plain construction of the words, the Judge of any Court is entitled and bound to give his judgment, according to his own understanding of the words used. The construction in such a case is not matter of foreign law, and the Court here is not bound by the opinion of the foreign lawyer on the question of construction.2

1 22 & 23 Vict. c. 63.

2 Thomson's Trustees, 18th Dec. 1851, 14 D. 217.

WRITINGS in re mercatoriâ.

CHAPTER IV.

We now proceed to the case of writings in re mercatorid, which form a large and very important class of privileged writs.

Professor Bell1 describes these as 'bills, promissory-notes, and checks 'on bankers; orders for goods, mandates and procurations, guarantees, ' offers and acceptances to sell or to buy wares and merchandise; or to transport them from place to place; and in general, all the variety of engagements or mandates or acknowledgments which the infinite occasions of trade may require.'

The Court of Session classed among these the banker's entry in a bank pass-book;2 holding that the bank pass-book was not the copy of the account kept in the bank books, but that each entry, by the banker, of money paid in, was a separate complete receipt for such money. But the House of Lords altered, and remitted the case for further consideration;3 holding that the pass-book was not proof, but only prima facie evidence, liable to be rebutted; and the object of their remit was to take proof, prout de jure, in opposition to the pass-book.

Missive letters, engaging to join in a bill, given as security for rent, are in re mercatoria, and entitled to be held privileged writings. So also is a letter of guarantee of an account, for past as well as future furnishings.5 The main question tried in Paterson's case was,-whether the guarantee was privileged so far as granted for past furnishings. The Court found that it was so. But a missive, in order to have the benefit of the privileges, must be in re mercatoria; an obligation of relief from payment of an ordinary bond is not privileged. Neither is a simple acknowledgment that the granter owes the grantee a sum of money borrowed." Fitted accounts among merchants are amongst privileged writings; also fitted accounts generally, when applicable to mercantile matters. In the case of Campbell, an attempt was made to open up a general discharge of all claims, following on a long correspondence, and

1 Bell's Commentaries, i. 325.

2 Rhind, 24th Feb. 1857, 19 D. 519.

3 10th Feb. 1860, 32 Jurist, 283.

4 Henderson, 5th Dec. 1765, M. 16,986.

5 Paterson, 31st Jan. 1810, F. C.; affirmed 4th July 1814, 6 Paton, 38.

6 Crichton, 21st July 1772, M. 17,047. 7 Hamilton, 2d December 1858, 21 D. 51.

8

Lesly, 27th Jan. 1714, M. 16,978.

9 Campbell, 10th May 1822, 1 Sh. 446.