taken thereon on the 26th of February, and registered on the 27th of the same month.

This loan was applied by David Drummond to repay a similar loan which he had obtained from Messrs. Newnham and Company, his bankers in London. He had, in his books of account kept in his business, stated his stock in trade as debtor for the sum due to the bankers; and when he effected this heritable loan from Birrell, he noticed it in his books in the same way as a debt of his stock in trade. David Drummond died at his house in Sackville Street, London, on the 27th of July 1791, a bachelor and intestate. His mother survived him, as did his brother James Drummond and several sisters; these were his next of kin according to the law of England. James Drummond succeeded him as heir to the estates of Duchally and Pittentian, under the disposition of Mr. Clow.

The mother, residing in Scotland, renounced the right of administration in favour of her son James, and he thereupon obtained letters of administration of the estate and effects of his late brother in the Prerogative Court of Canterbury. He thus came to hold the two characters of heir and administrator to his brother.

Soon after David Drummond's death, James Drummond sold the estate of Duchally at the price of 3800%., and in May 1792, he paid Mr. Birrell the principal sum of 2000 with 1287. of interest out of the price of these lands. Birrell thereupon granted his discharge of the heritable security, proceeding upon this narrative: "And now, seeing that James Drummond, merchant in London, brother-german of the said deceased David Drummond, and heir of provision in the foresaid lands of Duchally, &c. has, upon the 16th day of May last past, made payment to me of the foresaid principal sum of 2000l., &c. Therefore I have exonered and discharged, and hereby exoner, quit claim, and simpliciter for ever discharge the said James

Drummond, his heirs, executors, and successors, and all others whomsoever, the heirs and representatives of the said David Drummond;" and he renounced his right to the lands. This discharge was registered on the 29th of June 1792.

James Drummond having failed to account to the other next of kin for the personal estate, a suit was commenced against him in the Prerogative Court of Canterbury to oblige him to exhibit an inventory of the effects of the deceased, and to render a true, just, and faithful account of his administration thereof; and also to make distribution according to the statute.

In consequence of this proceeding, an account was exhibited by James Drummond of his administration, and among other items he claimed deduction of the 2000%. of principal, and interest, paid to Mr. Birrell in satisfaction of the heritable security which he held over the real estate. In exception, it was pleaded by the other next of kin, that this, being a heritable debt, according to the law of Scotland fell to be paid out of the heritable estate in that country; and that though the creditor might have proceeded against the whole estate of the deceased, real or personal, still Birrell had used no diligence on the personal estate, and had in fact been paid out of the price of the lands of Duchally which had been sold; they claimed, therefore, that this payment should be disallowed in the discharge of the administrator.

The Judge, Sir William Wynne, on delivering his opinion on this case, said, "That, by the law of England, a mortgage is a clear charge on the personal estate. this case it was pleaded, that there was no English bond, only a security on a foreign real estate. This Court will sometimes interfere in foreign transactions; but this is completely an English transaction. The deceased was an Englishman, and the administrator an Englishman; also

the transaction was in England; the money was received in England and applied in England; and it seems so admitted by the other side, this being an application in an English court for the distribution of English property. The payment was made as administrator; he had a right to make it; his conduct as administrator was fair and honourable, and his account is a regular account, against which there does not appear any objection." And the Judge refused to make any reservation of an action for relief of the next of kin in Scotland. (u)

This judgment was not brought under review in any English court; but the next of kin raised an action in the Court of Session in Scotland, against James Drummond, concluding that he, as heir in the heritable property, should be decerned to pay to them from his own proper money six sevenths (he being entitled to the other seventh himself) of the sum of 2000l. of principal, and the interest thereof, paid to Birrell, as before mentioned. James Drummond made defences, insisting that he had a right to deduct these sums from the personal estate; and he also pleaded the judgment of the Prerogative Court in his favour.

The Lord Justice Clerk Ordinary (x) at first decided, "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, that the personal estate of the said David Drummond was to be administered according to the law of England; and, in respect that this question had already been tried, and received the decision of the Judge

(u) Case of the appellants in the House of Lords, p.3. This still justifies the remark of Sir R. P. Arden, Master of the Rolls, in the case of Somerville, that the judges of the ecclesiastical courts had a leaning to the lex loci rei sitæ. (Supra, p. 180.)

(x) Lord Braxfield.

of the Prerogative Court, found the action not competent in that court, and therefore sustained the defences, assoilzied the defender, and decerned."

But upon a representation, which was followed with answers, the Lord Ordinary altered his opinion, and found, "that when a sum of money is secured upon lands by a 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 was 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 the heritable bond, finds that James Drummond is ultimately liable for payment of that heritable bond, without relief against the personal estate of David Drummond; finds that the decree of the Prerogative Court of Canterbury went no further than to find, that the sum in the heritable bond being chargeable as a debt against the personal 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 determine the question of relief competent to the executors (y) against the heir; therefore altered the former interlocutor, repelled the plea of res judicata, and found that James Drummond, the heir, was liable to the pursuers in payment of the contents of that heritable bond."

On a reclaiming petition the Court decided, that "in respect the pursuers did only insist upon a decree for six seventh parts of the sums contained in the heritable bond, they, with this explanation, adhered to the interlocutor of the Lord Ordinary." And James Drummond being now dead, and succeeded by his son David, an infant, by a future interlocutor, the Court decerned against David Drummond and his tutrix, for payment to the pursuers of

(y) Meaning those entitled to the executry; the next of kin.

six seventh parts of the money paid to Birrell, the heritable creditor.

From these interlocutors David and his tutrix brought their appeal to the House of Lords. The same points appear to have been discussed in the appeal cases as in the Court of Session. After hearing counsel, the judgment of the Court was simply affirmed on the 20th of February 1799.

This is a very important case of conflictus legum; it shows that when an Englishman, or foreigner, succeeds to a real estate in Scotland, he takes it subject to those burthens which by the law of Scotland affect it at the time, to be discharged without relief from the English, or foreign, personal estate. It is remarkable on account of the conflicting decision in the English ecclesiastical court; it does not appear that the decision of the House of Lords in this case has since been matter of dispute. (z)

In Wightman v. Delisle's Trustees (16th June 1802) (a), a case occurred in the Court of Session on the point, whether a will made in India, devising all the testator's “real and personal estate whatsoever and wheresoever," to trustees for certain purposes, was effectual in relation to a real estate in India, purchased after the will was executed.

In 1785, Philip Delisle, a native of Scotland, but settled in Calcutta as a merchant from an early period of life, made his will in India, giving and devising his "estate and effects, of whatever kind or nature soever, in India," to trustees in that country, for certain purposes. After giving certain legacies, he directed the trustees in India to transmit all the remainder of his estate and effects in India to trustees in Scotland, "to whom I do hereby give and de

(*) This being a simple affirmance, it does not appear that any thing was said on moving the judgment. See the opinion of Sir William Grant upon this case, noticed in that of Brodie v. Barry, infra. (a) Fac. Coll. Morrison, 4479.