HL Deb 09 July 1858 vol 151 cc1152-3

, in moving the second reading of this Bill, explained that one of the principal objects of it was to simplify the proceedings in Scotland in confirmation of executors; which was analogous to taking out probate in this country. The other part of the Bill related to the effect of a probate in this country on property in Scotland, or of letters of confirmation in Scotland on property in this country. At present a probate in this country was of no avail in respect to property in Scotland, and it was necessary to take out probate in both countries, if there were property, however small, in both. The Bill would make a probate in England good for property in Scotland, and a confirmation in Scotland good for property in this country. He should have been satisfied with making this statement, had it not been for a petition which had been presented to-day by his noble and learned Friend (Lord Cranworth) from the Writers to the Signet in Edinburgh, praying that the Bill might be restored to the original form in which it had been introduced into the other House. As originally introduced, it had been the option of the parties to petition either the Commissary in the county where the deceased was domiciled, or go to the Commissary in Edinburgh. The Lord Advocate, in the progress of the Bill through the House of Commons, had thought it advisable to omit this part of the Bill, and to leave the matter as it stood before, which made it compulsory to take proceedings before the Commissary in the county. There had been a good deal of agitation on the part of the Writers to the Signet against this alteration, as they were naturally desirous to obtain as large an amount of practice as possible; but the Lord Advocate had declined to grant the option which was asked for. He agreed with his right hon. Friend the Lord Advocate in the view he had taken, and he should therefore oppose the introduction of any words in the Bill by which the option of going before either the county Commissary or the Commissary in Edinburgh would be given.


said, that the main object of the Bill had his entire concurrence; but the matter referred to in the petition which he had presented was, he thought, a blot on the Bill. It was said by his noble and learned Friend that the object of the petitioners was to restore the Bill to the same state as it was when introduced into the House of Commons. That was true; but it was also true that their object was to restore it to the state in which it had passed through Committee and been reported, for the change which was made had been made only in the last stage of the Bill, and, he believed, at a late hour of the night. The question was not one of the interests of different practitioners, but of the interests of the public. The matter might be easily explained. In England, under the old law when a man died leaving a will there was great difficulty in ascertaining whether a diocesan or a prerogative probate should be taken out by his executors; but by a reeent Act all that nonsense was now at an end. This Bill, when introduced into the Commons, and as it passed through Committee there, contained a provision to the effect that when a person died domiciled in any particular county his will might be proved before the Commissory Court of that county, or before the Commissionary Court of Edinburgh. But the alteration which had been made in the Bill in its last stage in the Commons rendered it obligatory on the representatives of a testator dying in Scotland to prove his will in the county in which he was domiciled at the time of his death. He thought that a great blot, inasmuch as it might be very difficult to say where a man was domiciled, and everybody knew that questions of domicile gave rise to the nicest discussions. If domicile simply meant "residence," as had been suggested, it would be desirable to have its meaning so defined, in order to prevent the inconvenience that might arise from any ambiguity on that point.

Bill read 2a (according to Order) and committed to a Committee of the whole House.