66 CASES ON APPEAL FROM SCOTLAND.

1799. (M. 4478.)

DRUMMOND, M rs . S arah D rum m ond , Widow of the de-\
• &C.
V.
ceased J ames D rum m ond , Esq., of Dept f Appellants ;
DRUMMOND, ford, Guardian for her Son, and W il l ia m ?’
&C. M o lle , W.S., her Attorney, . . )
J ames D rum mond of S t a g a it h , Esq., and
Others, Trustees of M rs . C low or D rum - J
mond , Wife of the deceased J ames D rum - r
Respondents.
mond , and Others, being the Mother and f
four surviving Sisters of the late D avid '
D rum m ond , . . . . J

House of Lords, 20th Feb. 1799.

H eritable D ebt— R elief among H eirs — F oreign D ecree-t-

D omicile— R es J udicata.—A party, originally a native of Scot­
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land, died domiciled in England, leaving an heritable estate in

Scotland, and considerable moveable estate in England. The de­
ceased’s brother succeeded to the heritable estate in Scotland, and
his mother and sisters, along with himself, to the personal estate
in England. There was an heritable debt over the estate in Scot­
land for £2000, to pay which he sold part of the estate. He also
took out letters of administration as to the personal estate in Eng­
land ; and the respondents having brought action there to make
him account for their shares, he contended, that as by the law of
England, where the deceased died domiciled, heritable bonds
were a charge on the personal estate, he was entitled to deduct
the heritable debt paid. The courts in England found accord­
ingly. But the respondents thereafter raised an action in Scot­
land, of relief against the heir of provision in the heritable estate.
Held him liable in relief, and that the foreign decree was neither
res judicata, nor had decided the question of relief competent to
the executors against the heir, who, according to the law of
heritable estate and succession in Scotland, was liable to pay that
debt.

Mr. Clow, Professor of Logic in the University of Glasgow,

left his estates of Duchally and Pettentian, situated in the
county of Perth, in Scotland, to his nephew, “ David Drum-
“ mond, merchant in London, and the heirs of his body,
“ whom failing, to James Drummond, and the heirs pf his
“ body.”
David Drummond succeeded to these estates. He was a
native of Scotland, but had been always domiciled in Eng-
 CASES ON APPEAL FROM SCOTLAND. 67

land, engaged in business as a wine merchant. He bad, after 1799,

bis succeeding to these Scotch estates, resorted occasion- ----------
ally to Scotland, and resided at the mansion-house, which d r u m m o n d ,
was furnished, and where he had an establishment of ser- ‘
vants, but his permanent domicile was in England. drummond,

He granted an heritable bond over both these estates of &c‘

Duchally and Fettentian to Captain Birrel of Kirkaldy, for
the sum of £2000 borrowed from him. He died thereafter j uiy 27, 1791.
in London, intestate, and without issue, leaving considerable
moveable estate, and the real estates above mentioned.
In terms of his uncle's deed, the heritable estates in Scot­
land devolved on his brother, James Drummond, as heir of
provision. The personal estate, if regulated according to the
law of England, devolved on his mother, his five sisters,
and James Drummond his only brother, the heir to the
heritable estate. ••
James Drummond took out letters of a^lmistration from
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the Prerogative Court of Canterbury to the personal estate.

He also made up titles to the Scotch estates, and sold the
estate of Duchally for £3800 : and from the price thereof
paid off many of his brother’s debts, and in particular, the
bond of £2000 to Captain Birrell.
The respondents, as next of kin, preferred their claim
against the administrator in England, by raising an action in
the English Courts to make him account for the personal
estate, and to have the same distributed according to the
English statute thereanent. Accordingly, the administrator
was ordered to give in, and did give in, an inventory of the
personal estate, but having deducted from the amount
thereof the sum of £2000 paid to Captain Birrell, being the
amount of the deceased’s bond to him, the question came to
be, Whether this debt was a charge on the real estates in
Scotland, or his personal estate in England ?
The next of kin contended, before the English Courts,
that the deceased was a native of Scotland. That at the
time of his decease, and for several years before that event,
he W’as possessed of real estates in that country, constantly
kept an establishment of servants at his mansion-house of
Duchally, and occasionally resided there. That, though by
the law of England, mortgages when paid, are chargeable
against the personal estate, and so fall on the .executors, yet
the bond here was not an English bond. That this was a
Scotch bond for money to be paid in Scotland, to a party
domiciled in Scotland, and secured over estates there ; that,
 68 CASKS OX APPEAL FROM SCOTLAND.

1799. therefore, it fell to be regulated by the law of Scotland,

which made such heritable burdens chargeable on the real
DRUMMOND,
&(.\ estates, and consequently on the heir who took the Scotch
V. estates so burdened. The estates having been burdened with
DRUMMOND,
the debt, the heir who takes these estates is both primarily
and ultimately liable for the amount. In answer, it was
admitted by the administrator that he had paid the £2000
bond out of the price of the Duchally estate sold ; but as the
deceased died domiciled in England, his personal estate was
to be administered according to the English law ; and as
that law rendered the personal estate primarily liable for
the debts ,due by mortgage or heritable bond, he was en­
titled to take credit therefor from the personal estate. The
Court of England held, that “ this was completely an E ng-
“ lish transaction. The deceased was an Englishman, and
“ the administrator an Englishman.” “ The payment was
“ made as administrator, and he had a right to make it.”
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No appeal was taken from this sentence, but the respon­

dents, conceiving that the above judgment did not bar their
claim of relief against the heir of provision, who was primari­
ly liable as such for the payment of this heritable debt,
raised the present action in the Court of Session against
him, concluding for relief, and payment of six-seventh parts
of the £2000 (Janies Drummond being entitled to the other
one-seventh according to the law of England).
At first, the Lord Ordinary (Lord Justice Clerk M‘Queen)
Feb. 1, 1797. pronounced this interlocutor: “ In respect that David
“ Drummond died domiciled in England, and that letters of
“ administration were taken out from the Prerogative Court
“ of Canterbury by the defender, James Drummond, finds
“ that the personal estate of the said David Drummond is
“ to be administered according to the law of England ; and,
“ in respect that this question has been already tried, and
“ received the decision of the Judge of the Prerogative
“ Court, finds the action not now competent in this Court,
“ and therefore sustains the defences.”
But afterwards, on representation, his Lordship found,
Dec. 8, 1797•* “ that by the laws of Scotland, when a sum of money is se-
“ cured upon lands by an heritable bond and infeftment,
“ the lands are held to be the principal debtor; and in
“ respect that the estate belonging to David Drummond,
“ over which the heritable bond in question is granted, was
“ taken up by James Drummond as heir to his brother: and
“ that the same is of much greater value than the sum in
 CASES ON APPEAL FRO SCOTLAND. G9

“ the heritable bond ; finds, that James Drummond is ulti- j7D9.

“ mately liable for payment of that heritable bond without
“ relief against the personal estate of David Drummond : d h u m&mc.o n d ,
“ Finds, that the decree of the Prerogative Court of Canter- V.

“ bury went no farther than to find that the sum in the he- DRUMMOND,
&C.
“ ritable bond, being .chargeable as a debt against the per-
“ sonal estate, so James Drummond, who paid the heritable
“ bond, was entitled to take credit for the contents thereof
“ in accounting for the personal estate, but did not deter-
“ mine the question of relief competent to the executors
“ against the heir. Therefore, alters the former interlocu-
“ tor, repels the plea of res judicata; finds, that James
“ Drummond, the heir, is liable to the pursuers in payment
“ of the contents of that heritable bond, and decerns.”
On reclaiming petition, the Court adhered. “ In respect, May 17, 1798.
“ the pursuers did insist only upon a decree for six-seventh
u parts of the sum in the heritable bond.” A second re­
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claiming petition was presented, contending that the Pre­

rogative Court had already pronounced decree in this mat­
ter, which fell properly within its cognizance, and was ex­
haustive of the present question, and that, as the deceased
was a domiciled Englishman, the succession to his personal
estate, and the burdens to which that estate was liable, be­
hoved to be regulated by the law of England, and conse­
quently, that the decree of the competent Court in that
country must be held to be res judicata in favour of the de­
fenders. But the Court adhered with expenses. May 30,1798.
Against these interlocutors the present appeal wTas brought
to the House of Lords.
Pleaded fo r the Appellants.—The deceased David Drum­
mond, though a native of Scotland, was domiciled in Eng­
land at the time of his death, and having died intestate, the
succession to his personal estate must be regulated by the
law of England ; and those who are called to the succession,
by that law must take it with every debt and with every
burden to which that law has rendered it liable. By the
law of England, the mortgaged debt due to Captain Birrell
having been contracted by the late David Drummond him­
self, is chargeable on his personal estate, (which is more
than sufficient for answering the same), in exoneration of
the real estate. This heritable debt due to Captain Birrell
having been completely extinguished by the discharge and
renunciation of the creditor, the heritable security was at
an end, and the real lien over the lands was dissolved, and
s
 t

70 CASES ON APPEAL FROM SCOTLAND.

1799. the executors had nothing more than a personal claim of

relief against the heir. This claim of relief was cognizable
DRUMMOND,
&C.
in the Prerogative Court of Canterbury, which, as it is un­
V. doubtedly competent to take cognizance of the accounts of
DRUMMOND,
the administrator acting under its own authority, and to *
&C.
compel from him the account and final distribution at the
instance of the next of kin according to their rights, so it had
also an undoubted jurisdiction to take cognizance of every
question necessarily incidental to such accounting and dis­
tribution; and,clefacto, the judgment of the Prerogative Court
of Canterbury, admitting the articles in the account objected'
to in the allegation for the respondents, was decisive as to that
very claim of relief which they endeavour to make effectual
by the action in the Court of Session. The point in dispute
between the parties having therefore been determined by
the sentence of a Court of competent jurisdiction, that sen­
tence was to be considered as affording to the appellants
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the exceptio reijudicatce; and, consequently, it was not com­

petent for the respondents to insist in the action before the
Court of Session, in order to make effectual that claim. And
f
even, although such action had been competent in the Court
of Session, and although the judgment of the Prerogative
Court of Canterbury had not stood in the way, still, as the
real lien over the estate in Scotland was dissolved by the
discharge and renunciation executed by the creditor, the
action in the Court of Session could have been nothing more
than a personal claim of relief, in which the pursuers ought
to have insisted as the nearest of kin of their deceased bro­
ther, and, as such, having right to a share of his estate by
the law of England; and, consequently, every personal claim
competent to them qua nearest of kin, must have been de­
cided by the law of England, which was the domicile of
David Drummond ; and as by the laws of that country the
personal estate was the primary fund for the payment of *
any debt contracted by David Drummond, so his nearest of
kin must take his succession according to that law, and can*
not, by resorting to the Courts of a foreign country, compel
a distribution different from that which the law of the do­
micile authorizes.
Pleaded fo r the Respondents.—By the law of Scotland,
when a sum of money is secured by an heritable bond and
infeftment, the land is held to be the principal debtor, and
the land passes to the heir, burdened with the heritable
debt, as much as with the land tax, or any other imposition
 CASES ON APPEAL FROM SCOTLAND. 71

which the public law of the country lays upon it. When, 1799.
therefore, Janies Drummond, who vested himself in the
right of these lands, sold part of them, and out of the price DRUMMOND,
&C.
discharged the debt due to Captain Birrel, he was only re­ V.

lieving himself of an incumbrance of which, had it been dis­ DRUMMOND,

&C.
charged at the expense of the executry, he himself would
have been ultimately liable in the relief. But, as the debt
was not paid out of the personal funds, nor is there any
deficiency in the real estate, but, on the contrary, a very
considerable reversion, there are no grounds for throwing
this burden upon the executry in ease of the heritable pro­
perty. This being a question in regard to an heritable sub­
ject situated in Scotland, the law of that country must be
the rule according to which it is to be judged of. Though, by
David Drummond having died domiciled in England, the per­
sonal succession must be governed by the law of that country,
yet that cannot affect or interfere with the succession to his
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real estate situated in a different country, and governed by a

differentlaw;—land, which cannot, like moveable property, be
removed from one country to anotherat the pleasure of the pro­
prietor, must necessarily be subject to the rules of the juris­
diction within which it is situated; and as it can only be ac­
quired and transferred according to the forms, and under the
qualifications which the law of the jurisdiction points out, so
it must be subject to all those burdens and limitations which
the law imposes. Accordingly, James Drummond, when he
took up these estates of Pettentian and Duchally, by a ser­
vice as heir of provision, took them with the burden of Cap­
tain Birrel’s infeftment; and as he became possessed of the
fund out of which Captain Birrel wras entitled to operate
' payment of his debt, so he was primarily and ultimately
liable for the discharge of it, without recourse against any
person whatever. By serving himself heir in a subject situat­
ed in a country in which the law imposes the payment of
heritable debts upon the heir, James Drummond became as
effectually bound to discharge the sum in question, without
relief against the executry, as if he had entered into a con­
tract for that purpose, both with the creditor and the other
• next of kin ; and under that condition only he takes up the
succession. And there is here no res judicata that can ren­
der it incompetent for the Court of Session to judge in a
question which naturally and properly falls under their juris­
diction alone. The decision of the prerogative Court of
Canterbury respected only the accounts of the administrator,

*
 72 CASES ON APPEAL FROM SCOTLAND.

1799. in his management of the personal funds; and in allow­

ing him to state the contents of this heritable debt as
MARSHALL
part of this account, it went no further than to determine,
V.
MARSHALL. that as a debt chargeable against the personal estate, he
was entitled to take credit for it in accounting for that
estate. The action brought against the administrator in
the Prerogative Court, related solely to the personal
funds; and according to the terms of the record, the accounts
exhibited were of his management as administrator only,
and from the limited nature of its own jurisdiction, and the
proper forum for determining the question of ultimate relief,
being the law of the place where the landed property lay, not
the law of the place where the deceased died domiciled, the
Court could not have intended to preclude the after discus­
sion of the matter, neither could its judgment have that ef­
fect.
After hearing counsel, it was
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Ordered and adjudged that the interlocutors complained

of be, and the same are hereby affirmed.
For Appellants, W. Adam, John Bell.
For Respondents, W. Grant, F. Lawrence.

(M. 16787.) -
M rs R ose A n d er so n , Wife o f T homas H ay
M a rsh a ll , Merchant in Perth,
T homas I I ay M arshall , - Respondent.

House of Lords, 8th April 1799.

D ivorce— P roof— A dmissibility of the S o c i i C r i m i n i s a s W it ­
nesses.—In an action of divorce for adultery, brought by the hus­
band against his wife, she was charged in the libel with having
committed adultery writh two persons therein named. In the proof
led, meetings with these parties at night, in suspicious circumstan­
ces, w'ere proved, but no direct proof of adultery. The defender,
on her part, sought to adduce the alleged paramours as witnesses
in her favour. The Commissaries having considered the nature
of the proof led, held them inadmissible; and this, in an advoca­
tion, was adhered to by the Court of Session. On appeal, reversed;
and held, that the socii crimitiis were equally competent as wit­
nesses for the defender, as when adduced as witnesses for the pur­
suer, in an action of divorce for adultery.

The respondent raised an action of divorce against his

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