Monroe v Douglas.
Monroe and Wife and others, v. Douglas.(a)
According to the common law, a judgment in the forum rei tiia, respecting land or other immovable property, is of universal obligation, and absolutely conclusive, as to all the matters of right and title which it professes to decide in relation thereto; and is equally conclusive in respect of the proceeds of such land, in whatever country the same may afterwards be found.
To give validity to foreign judgments, it must appear that the court pronouncing them had a lawful jurisdiction over the subject matter ; and the court where it is propounded, may look into the question of jurisdiction.
In judgments and decrees, in rem, it must appear that there had been regular proceedings to found the same, and that the parties interested in re, have had notice, or an opportunity to appear and defend their interests, before it was pronounced. What such notice shall be, or what opportunity shall be given to appear, is regulated wholly by the local law, where the proceeding takes place. The sufficiency of such notice or opportunity, is not examinable in the court where the foreign judgment in rem, is produced.
To give effect to a foreign judgment in personam, the tribunal must have had jurisdiction of the defendant, either by domicil, by service of process or summons, or by voluntary appearance.
To acquire jurisdiction of the subject matter in rem, it is not necessary that the court shall bring the parties within reach of its process. The presence of the subject matter, the Rem, within the territorial dominion of the sovereign power, under the authority of which the court acts, confers jurisdiction upon such court; and the local laws and regulations determine what service of process, or what form of notice to the defenders, shall suffice to enable the court to proceed to judgment.
The parly contesting here, the validity of the decree of a foreign court, in rem, appearing to have been made within its appropriate power and jurisdiction ; may show that it was procured by fraud, or that it is void on its face, or that it is void by the local law fori rei judicata, either in respect of notice to him, or otherwise. The burthen of showing its invalidity, rests upon the the party seeking to impeach it.
The courts here, in respect of a foreign judgment or decree appearing to be regular in point of form, will presume that all which appears in the record, preliminary to the judgment or decree, was rightfully and properly done, according to the laws and regulations of the foreign country.
Where the record of a foreign judgment states that the defendant appeared by attorney, or by the proper officer for that purpose, the authority of such person will be presumed, when the judgment is produced in evidence here.
(a) For an index to the contents of the report of this case, see note at the end of the case. [Not included]

Where it appears that a foreign court, proceeding in rem, has jurisdiction of the subject matter, and of the parties according ti> its laws; the same effect is to be given to its decree, when brought in question in another country, relative to the subject matter, as it is entitled to in the country where it was pronounced.
There is an important distinction between an action brought to enforce a foreign judgment; and the exeeptio rei judicata, or the plea of such a judgment in bar of a suit instituted in another country to destroy its effect, or to establish an inconsistent right. Where in the former case, the foreign judgment would be only presumptive evidence, in the latter it would be an absolute bar; leaving the party asserting its errors or irregularities, to procure their correction in the court which pronounced the judgment.
W., a native of Scotland, domiciled there, having a large real or heritable estate and also a large movable property, at his death, left a Disposition and Settlement, (or will,) duly executed, by which he gave the bulk of his estate to trustees in trust, that the same might be equally divided between his brothers, J., G. and S , and in case of the death of either, his or their shares or third part to descend to the heirs of bis or their bodies; the children of the brother so dying, to succeed to his third part; with a recommendation to his brothers to settle this and all their property, so that it would descend in the male line. G. died before the testator. His children were all natives of New York, and always resided there. In 1813, during the war with Great Britain, the defendant, the eldest son of G , being just of age, and in Scotland, the trustees of the Settlement instituted an action of Multiple Poinding and Exoneretur, in the court of session of Scotland, to settle their trusts, in which all the children of G. were named as parties. The defendant was cited personally, the other four children by edicial citation, i. e., a proclamation, &c.; all being in New York, and the complainant only thirteen years of age. The four children appeared by a mandatory, and were represented by counsel; the cause was heard in four months after it was instituted, and a decree made, to the effect that the defendant as heir of G. was entitled to the third of the heritable estate, and the other four children to the third of the movable property. No tutor or curator ad litem was appoiuted for the complainant, and there was no proof of authority to the mandatory to appear for her. The defendant sold the heritable estate, and the proceeds were remitted to him in New York. On a bill filed here, alleging that, by the Settlement of \V., all the children of G. were equally entitled to the heritable estate, that the complainant was an infant, not served with process, and no person authorized to appear for her or represent her in the suit; that the decree was irregular and void as against her; and that the defendant did not, in that respect, look after her interests, as he had undertaken to do ; and praying that he should account to her for her proportion of the proceeds of the heritable property. Held, that the proceeding in the court of session, was in rem, and that it had jurisdiction of the subject matter ; and its decree appearing to be regular in form, was pre*umplivcly valid. That there was no sufficient evidence to show that the appearance was without authority, or that the want of a tutor or curator for the infant, made the proceeding wholly void, or anything more than erroneous or voidable. And that the decree was a bar to the suit here. Held, on the testimony, that there was no ground for imputing fraud in obtaining the decree. The law and adjudications in Scotland, considered, on the subject of Edictal Citation, Decrees in Absence, Action of Reduction, and Tutors and Curators ad Lites.
March 2,3, 4, 5,19,21, 27,28, and April 4th; September 4th, 1846.
The bill in this cause was filed April 20, 1842, by James Monroe and Elizabeth Mary his wife, and William Grayson and Jacob Crowninshield, trustees of the separate estate of Mrs. Monroe; against George Douglas.
The bill stated, that on the 23rd day of August, 1790, Sir William Douglas, of Castle Douglas, in Scotland, being seised and possessd of a large real estate situate in Scotland and Wales, and of a large personal estate, made and executed at Edinburgh, a Settlement of his affairs to take place after his death, in the presence of two witnesses; the same being in the nature of a last will and testament. By this settlement, Sir William Douglas, transferred all his property, heritable, movable, lands and personalty, to James Douglas of Scotland, George Douglas of New York, Samuel Douglas of Crae, in Scotland, merchant in London, and Sir James Shaw of London, as trustees; with full power to take possession, hold, sell and convert the same, and to apply the produce thereof in the manner therein specified. The trustees were to pay certain donations and legacies, after which the decedent made the following disposition:
"And with regard to the remainder of my said estate and effects, after payment of my debts and the legacies and others above mentioned, and such other legacies or sums as I shall hereafter legate and bequeath, I hereby declare that the same are only settled on the said trustees or their quorum, in trust, in order that the same may be equally divided among my three brothers, James, George, and Samuel Douglas, and in case of the death of any one or more of my said brothers, it is hereby declared that the share or third part of him or them so dying, shall descend to the heirs of his or their bodies, and in case of the death of either of my said brothers without lawful children, then the remainder and residue of my said estate and effects shall be divided among the survivors, and the heirs of their bodies, the children of my brother so dying always succeeding to the remainder, or third part of my said estate and effects, to which their father would have succeeded, had he been in life. Only in the event of either of my brothers dying without children lawfully procreated of his body, then, and in that case, I leave an additional legacy of £1500 sterling, to each of my nieces, Elizabeth and Margaret McHaffie, payable to them at the first term of Whitsunday or Martinmas after my death, and the death of either of my brothers without children lawfully procreated of his body, with a fifth part more of penalty in case of failure, and annual rent from the said term of payment during the not payment of the same. And I further recommend to my said brothers to settle their own estates, with what they may succeed to, in virtue of this present settlement, in such a manner as that the same may continue as long as possible in the male line."
The bill further set forth, that Sir William Douglas died on the 20th of September, 1809, without having revoked or annulled his settlement. That George Douglas, of the city of New York, a citizen of the United States, who was one of the trustees mentioned in the settlement, and the brother of Sir William, (who in the opinion of the court, is designated as George Douglas, Jr.,) died October 9, 1799, leaving five children, viz: Margaret, since deceased, Harriet, now the wife of Henry D. Cruger, George, William, and Elizabeth Mary, now the wife of James Monroe.
That Sir James Shaw declined to act as trustee under the settlement, and James and Samuel Douglas became the only acting trustees. That on the 7th of October, 1813, those two trustees caused a suit, called a process of multiple-poinding and exoneration, to be instituted, in the Court of Session in Edinburgh, Scotland, for the purpose of procuring their discharge and exoneration, and for no other purpose; in which suit, the now defendant, George Douglas, described therein as eldest son and heir of the deceased George Douglas, and Margaret, Harriet, William, and Elizabeth Douglas, were made defendants. That on the 8th of October, 1813, proclamation was made at the Market Cross in Edinburgh, and at the pier and shore of Leith, summoning the four last named defendants, (all as being forth of Scotland,) and their tutors and curators, if any they had, to appear at the instance of James and Samuel Douglas; and on the 10th of December, 1813, a similar proclamation was repeated. That on the 23d of February, 1814, a claim was put in by George Douglas, in his own behalf; and a paper purporting to be a claim in behalf of the younger children of the deceased George Douglas, was put in by one Alexander Young, a writer to the signet, professing to be a mandatory of those younger children; and on the 24th of February, a decree was pronounced, in which George Douglas was preferred as eldest son and heir of George D. deceased, to the entire third of the heritable estates left by Sir William Douglas, and the four other children to the third part of th« movables, reserving it to the heir to collate, and all claims competent to either party against the other; and the decree sustained the claims accordingly. A copy of the process, proceedings and decree, was annexed to the bill, and is inserted at large hereafter.
The bill further set forth, that during the whole of those proceedings, the now defendant was in Scotland, with the understanding that he should look to the interests of his younger brothers and sisters, and should keep the family in New York informed of every thing that transpired in relation thereto; that the complainant, now Mrs. Monroe, was an infant of tender years, residing in New York under the care of William Wilson and her mother, Mrs. Margaret Douglas, now deceased; that no process was served, and no notice given, either to the complainant, or to her guardians; that the proceedings were humed through between October 7th, 1813, and February 24th, 1814, during a period of active war between Great Britain and the United States; that no intercourse was kept up, and no communication held between Scotland and the United States; that the complainant, an infant, was incapable of employing, and did not employ Mr. Young, or any other person, to appear on her behalf, and that neither of her guardians employed him, or any other person, to appear for her.
That the complainants were wholly ignorant of those proceedings, and so continued for many years, and until after the defendant returned from Europe, when he informed the complainant, now Mrs. Monroe, that under that irregular decree, he had sold the real estate of Sir William Douglas, and received the proceeds to his own use; which was the fact. That she objected to such conversion to his own use, without accounting to her therefor, and has frequently and always insisted, that he held such proceeds as a trustee for her as to one-fifth part thereof. That Sir William D. left a very large personal estate, and it was supposed by the complainant, Mrs. M., and after her marriage, by all the complainants, that when the estate should be fully settled, the part or portion received by the four younger children of George D. deceased, might make each equal with the defendant; and until such final settlement, it could not be ascertained whether he would be liable to pay them, or they to him, in respect of the entire estate. That the sale of the real estate made by him, was an advantageous sale, and the complainants have always been willing to ratify it. That the decree of the Court of Session did not mean to affect or to conclude the rights of the defendant and his brothers and sisters, as between each other; but by its terms, expressly reserved the same, and left them entitled to call upon each other for an equal distribution of the whole estate.
The bill further set forth the marriage settlement, executed by Mr. and Mrs. Monroe before marriage, dated March 23,1822, by which all her property was vested in trustees for her separate use, as therein provided; and that the complainants, Messrs. Grayson and Crowninshield, were now the only trustees thereof. That Mr. and Mrs. Monroe were married April 4th, 1822. That in March, 1839, the whole estate of Sir William Douglas was settled, and a final dividend made; and then the complainants could first determine with absolute certainty, whether the defendant was to pay Mrs. Monroe, or to receive from her; and it then appeared that he had received over $200,000 more than his share of the estate, a great part of which is in the city of New York, and one-fifth of which belongs to Mrs. Monroe's trustees, and he ought to account to them for the same. That they have offered to bring into hotchpot and re-divide, all that has been received from Sir William D.'s estate; and that on such distribution, the complainants would be entitled to receive from the defendant about fifty thousand dollars.
The bill prayed for an answer; and amongst other things, inquired whether the defendant did not go to Scotland in 1813, to look after the interests of his brothers and sisters, as well as his own, and whether full confidence was not reposed in his entire devotion and faithful supervision of such interests. It also prayed for an account of the proceeds of the real estate, and payment of Mrs. Monroe's share thereof; (offering to confirm his sale ;) and for general relief.
The proceedings in the Court of Session referred to in the bill, and annexed in a schedule, were as follows, viz:
Proceedings in Process of Multiple-poinding and Exoneration.
Douglas' Trustees, Vs. Douglas.
1st SUMMONS. George the Third, by the Grace of God of the United Kingdom
of Great Britain and Ireland, King, Defender of the Faith.
To messengers at arms, our sheriffs in that part conjunctly and severally constituted, greeting:
Whereas, it is humbly meant and shown to us by our lovites, James Douglas, of Orchardton, Esquire, and Samuel Douglas, of Crae, Esquire, merchant, in London, the accepting and surviving trustees, nominated and appointed by the deceased, Sir William Douglas, of Castle Douglas, Bart., conform to trust disposition executed by the said Sir William Douglas, therein named and designed William Douglas, of Castle Douglas, Esquire, in favor of the pursuers, and the deceased George Douglas, of New York, North America, merchant, and James Shaw, Esq., merchant in London, now Sir James Shaw, who declined to accept, dated the 23d August, 1790, and registered in the books of counsel and session, (office W. B.) the 20th October, 1809. That the said Sir William Douglas, by his said trust disposition, assigned, conveyed and disposed the burdens and conditions and reservations therein mentioned, to and in favor of the pursuers, and the said George Douglas and Sir James Shaw, and to such of them as should accept, and to the survivors and last survivor of those accepting as trustees or trustee, for the purposes therein mentioned, declaring the major part to be a quorum, and in case of the failure of any of them, and that their number should be reduced to two or even one, then these two should be entitled to act jointly, and the survivor solely. All and sundry lands heritages, debts and sums of money, heritable and movable, household furniture, silver plate and heirship movables included, bank notes, government stock, and whole other and movable and heritable effects of whatever denomination, resting and belonging, or that should be resting and pertaining to him at his death, together with all heritable and movable bonds, obligations, contracts, dispositions, assignations, translations, adjudications, decreets, bills, precepts and other writs, rights and securities, then made, or that should thereafter be made and granted, or that could any ways be interpreted in his favor, at the time of his death, and all that had followed, or might follow thereupon, dispensing with the generality thereof, and admitting the same to be as valid and effectual as if every particular had been therein specially inserted, and particularly without prejudice to the generality aforesaid, the lands, tenements and others therein particularly described, together with all right, title, interest, claim of right, property and possession, petitory or possessory, which the said Sir William Douglas, his predecessors or authors had, or any ways might have, claim, or pretend thereto, or any part thereof, with full power to the said trustees, or the survivors or last survivor of those accepting, immediately after his death, to enter to the possession of his said heritable and movable estate and effects, generally and particularly thereby disposed, and to sell, assign and convey the same at pleasure, either by public roup or private bargain, and in general to use and dispose thereof, or any part of the same, as fully and freely in all respects as the said Sir William Douglas could have done himself; and to apply the produce thereof in manner therein specified, and particularly in paying the legacies and donations therein mentioned, after which he directed the residue of his estate and effects to be disposed of by the following clause, "And with regard to the remainder of my said estate and effects, after payment of my debts and the legacies and others above mentioned, and such other legacies or sums as I shall hereafter legate and bequeath, 1 hereby declare that the same are only settled en the said trustees or their quorum, in trust, in order that the same may be equally divided among my three brothers, James, George and Samuel Douglas, and in case of the death of any one or more of my said brothers, it is hereby declared that the share or third part of him or them so dying, shall descend to the heirs of his or their bodies, and in case of the death of either of my said brothers without lawful children, then the remainder of my said estate and effects shall be divided among the survivors, and the heirs of their bodies, the children of "my brother so dying always succeeding to the remainder, or third part of my said estate and effects, to which their father would have succeeded, had he been in life," and after leaving additional legacies to his nieces, " In the event of either of his brothers dying without children lawfully procreated of his body," the following clause occurs. "And I further recommend to my said brothers to settle their own estates, with what they may succeed to, in virtue of this present settlement, in such a manner as that the same may continue as long as possible in the male line. And I hereby appoint my said trustees and their quorum accordingly, to convey the remainder of my said estate in the manner above mentioned, as soon as conveniently can be done."
That the pursuers, as accepting and surviving trustees foresaid, have realized a considerable part of the movable funds and effects of the said Sir William Douglas, and have paid off the legacies, and other donations and bequests, appointed to he paid by him, and are now ready to divide the greatest part of the estate and effects, heritable and movable, of the said Sir William Douglas, in terms of his said trust' disposition, but the said George Douglas having predeceased the said Sir William Douglas, the share of the third part of the residue and remainder of his said estate and effects, appointed to descend to the heirs of the bodies of such of his brothers as should die, is now claimed by George Douglas, Esquire, residing at Castle Douglas, eldest son and heir of said deceased George Douglas, and also by Margaret Douglas, Harriet Douglas, William Douglas and Elizabeth Douglas, all residing in New York, North America, the younger children of the said deceased George Douglas. Therefore, the said George Douglas, the heir, and the said Margaret, Harriet, William and Elizabeth Douglas, the younger children of the said deceased, George Douglas, and the tutors and curators of such of them as are minors, if they any have, for their interest ought and should be convened before the lords of our council and session, and it ought and should be found and declared by decreet of our said lords, that the pursuers are only liable in once and single payment of the said share or third part of the residue or remainder of the estate and effects which belonged to the said Sir William Douglas, and that to such of the said defenders as shall be found to have best right thereto, after discussing their preference to the same, and after deduction of the pursuer's expenses of raising and prosecuting this action, and of extracting the decree to follow hereon, and upon the pursuers executing a disposition and conveyance, or accounting to the person or persons who shall be found entitled to the said share, or third part of the residue and remainder of the estate and effects of the said deceased, Sir William Douglas, which may have come into the hands of the pursuers, they ought and should by decree aforesaid, be Exonerated and Discharged of the offices of trustees of the said deceased Sir William Douglas, and of their whole management and intermissions had in virtue thereof, and to be declared quit thereof, and free therefrom in all times coming, in so far as concerns the aforesaid share of the third part of the residue and remainder of the said estate and effects of the said deceased, Sir William Douglas, and the whole of the said defenders, as well those who shall produce interests in the process to follow hereupon, as those who shall neglect to produce the same, or after production, shall be found to have no right, ought and should be prohibited and discharged by decree aforesaid from farther charging, troubling or molesting the pursuers, for or on account of the aforesaid share or third part of the residue and remainder of the said estate and effects of the said Sir William Douglas, provided to the said George Douglas and his foresaids., or of their intromissions or management therewith in all time coming, in any manner of way, conform to the laws and daily practice of Scotland, used and obs rved in like cases, in all points as is alleged. Our will is therefore, and we charge you that on sight hereof, ye pass, and in our name and authority lawfully summon, warn and charge, the said George Douglas, Esquire, eldest son and heir of the said deceased George Douglas, and the said Margaret Douglas, Harriet Douglas, William Douglas and Elizabeth Douglas, personally, or at their respective dwelling places, if within Sci tland, and the tutors and curators, of such of them as are minors, if they any have, for their interest by open proclamation, at the market cross of Edinburgh, and other places needful upon one diet of twenty-seven days warning, and such of thev defenders as are forth of Scotland, by open proclamation at the market cross of Edinburgh, pier and shore of Leith, upon sixty and fifteen days warning for first and second diets to compear before our said lords of council and session, at Edinburgh, or where they may happen to be lor the time the next to come, in the
hour of cause, with continuation of days to answer at the instance of the pursuers in the matter above libelled. That is to say, to hear and see tire premises verified, and proved, and decree, and sentence pronounced by our said lords, conform to the conclusions above written in all points, or else to allege a reasonable cause on the contrary, with certification as officers according to justice, as ye will answer to us thereupon; which to do, we commit to you conjunctly and severally, full power by these our letters, delivering them by you, duly executed and endorsed, again to the bearer. Given under our signet at Edinburgh, the seventh day of October, in the fifty-third year of our reign—' 1813.
(Signed,) David Wemyss.
Written upon this and the twelve preceding pages, by Nesmith Morrieson, my apprentice. 7th October, 1813.
EXECUTION THEREON.
Upon the 8th day of October, 1813 years, I, Allan Grant, messenger at arms, by virtue of the foregoing libelled summons of multiple-pointing and exoneration at the instance of Joseph Douglas, of Orchardton, Esquire, and Samuel Douglas, of Crae, Esquire, merchant in London, the accepting and surviving trustees, nominated and appointed by the deceased, Sir William Douglas, of Castle Douglas, Baronet, conform to the trust disposition therein mentioned, pursuers, against George Douglas, Esquire, residing at Castle Douglas, eldest son and heir of the deceased, George Douglas, Esquire, of New York, North America, merchant, Margaret Douglas, Harriet Douglas, William Douglas and Elizabeth Douglas, all residing in New York, North America, the younger children of the said deceased, George Douglas, and the tutors and curators of such of them as are minors, if they any have, for their interest, defenders; passed to the market cross of Edinburgh, and the pier and shore of Leith, respective and successive after others, and at each of the said three places, after crying three several oyesses, open proclamation and public leading, the said summons in His Majesty's name and authority, lawfully summoned, warned and charged the said Margaret Douglas, Harriet Douglas, William Douglas and Elizabeth Douglas, defenders, (all as being forth of Scotland,) and their tutors and curators, if they any have, for their interest, to compear before the lords of council and session, place and days specified in the said summons, for first and second diets in the hour of cause, with continuation of days to answer at the instance of the said pursuers in the matter therein libelled, with certification, conform to the said summons in all points, a full double whereof to the will, with a short copy of citation thereto subjoined, for each of the said Margaret Douglas, Harriet Douglas, William Douglas and Elizabeth Douglas, and the like full double and short copy for their tutors and curators, if they any have, for their interest; I affixed and left at and upon each of the said market cross of Edinburgh, and the pier and shore of Leith, respectively, after using the aforesaid solemnities, which several copies of citation were signed by me, did bear the date hereof, with the date and signeting of the said summons, and the names and designations of the witnesses following, who were present at the haill premises, and hereto subscribing upon this and the three preceding pages with me, viz., Thomas Willson and William Butler, indwellers in Edinburgh.
(Signed,) Allan Grant.
(Signed,) Thomas Willson, Witness. 
       William Butler, Witness. 

Another Execution On The Preceding Summons.
Upon the 10th day of December, 1813 years, I, Allan Grant, messenger at arms, passed by virtue of a libelled summons of multiple-poinding and exoneration, dated and signeted the 7th day of October last, at the instance of James Douglas, of Orchardton, Esquire, and Samuel Douglas, of Crae, Esq., merchant in London, the accepting and surviving trustees, nominated and appointed by the deceased, Sir William Douglas, of Castle Douglas, Baronet, conform to the trust disposition therein mentioned, pursuers against George Douglas, Esquire, residing at Castle Douglas, eldest son and heir of the deceased George Douglas, Esquire, of New York, North America, merchant, Margaret Douglas, Harriet Douglas, William Douglas and Elizabeth Douglas, all residing in New York, North America, the younger children of the said deceased George Douglas, and the tutors and curators of such of them as are minors, if they any have, for their interest, defenders, and in His Majesty's name and authority, lawfully summoned, warned and charged the said George Douglas, Esquire, eldest son and heir of the said deceased George Douglas, merchant, to compear before the lords of council and session, place and time specified in the said summons, in the hour of cause, with continuation of days, to answer at the instance of the said pursuers in the matter therein libelled, with certification, conform to the said summons in all points, a full double whereof to the will, with a short copy of citation thereto subjoined, I delivered to the said George Douglas, Esquire, personally apprehended, which copy of citation was signed by me, did bear the date hereof with the date and signeting of the said summons, and the names and designations of the witnesses following, who were present at the premises, and hereto subscribing upon this and the preceding page with me, viz: John Fraser and Thomas Willson, indwellers in Edingburgh.
(Signed,) Allan Grant.
(Signed,) John Fraser, Witness.
Thomas Willson, Witness.
Claim for George Douglas, Esquire, eldest son nnd heir of the deceased George Douglas, Esquire, of New York, North America, merchant, in the process of multiplepoinding at the instance of James Douglas, of Orchardton, and Samuel Douglas, of Crae, Esquires, Trustees of the deceased Sir William Douglas, of Castle Douglas, Baronet. 23d August, 1790.
The deceased Sir William Douglas, by a trust disposition and settlement of this date, assigned, conveyed and disponed to the said James Douglas and Samuel Douglas and the deceased George Douglas, the claimant's father, and James Shaw, of London, merchants, or to such of them as should accept, all and sundry lands and heritages, and all effects of whatever denomination that then belonged, or should belong to him at the time of his death, and that for the purposes therein mentioned, and interalia, it is declared that " With regard to the remainder of ray said estate and effects, after payment of my debts and the legacies and others above mentioned, and such other legacies or sums as I shall hereafter legate and bequeath, I hereby declare that the same are only settled on the said trustees or their quorum, in trust, in order that the same may be equally divided among my three brothers, James, George and Samuel Douglas, and in case of the death of any one or more of my said brothers, it is hereby declared that the share or third part of him or them so dying, shall descend to the heirs of his or their bodies, and in case of the death of either of my said brothers without lawful children, then the remainder and residue of my said estate and effects shall be divided among the survivors, and the heirs of their bodies, the children of my brother so dying always succeeding to the remainder, or third part of my said estate and effects, to which their father would have succeeded had he been in life." After some alterations, in the event of any of his brothers dying without children lawfully procreated, there is the following clause. "And I further recommend to my said brothers to settle their own estates, with what they may succeed to in virtue of this settlement, in such a manner as the same may continue as long as possible in the male line. And I hereby appoint my said trustees and their quorum accordingly, to convey the remainder of my said estate in the manner above mentioned, as soon as conveniently can be done."
From the clause first quoted as explained and confirmed by the last, it is obvious that the intention of the testator was, that the heir at law of the brother pre-deceasing, should be entitled to the entire third of the free residue of his estate. The word children is no doubt to be found in one of the clauses, but it appears to have been introduced either through mistake or misconception, as the words the heirs are twice repeated immediately preceding it, and the latter clause is quite decisive of the intention.
The claimant does not, in the present shape of the case, consider himself entitled to enter into argument explanatory of the foregoing clause. He conceives, however, that if any doubt could occur from the manner in which the clause first quoted is expressed, that must be entirely removed when the one last quoted is attended to, for there the intention of the testator is most forcibly marked.
However clear the claimant's title may be to both the heritable and movable estate, he, in consideration that the other claimants have now restricted their claim to a share, of the movable property, and with a view to avoid a lengthened litigation, limits his claim to the extent of a third of the heritage left by the deceased Sir William Douglas, and trusts that your lordship will have no hesitation in preferring him to that extent.
Claim for Margaret, Harriet, William and Elizabeth Douglas, all residing in New York, North America, the younger children of the deceased George Douglas, Esquire, Merchant, in New York, and Alexander Young, W. S. their mandatory, In the multiple-poinding at the instance of James Douglas, Esquire, of Orchardton, and Samuel Douglas, of Crae, Esquire, merchant, in London, Trustees of the deceased Sir William Douglas, of Castle Douglas, Baronet,
Against Them and George Douglas, Esquire, residing at Castle Douglas, their elder brother. 23d August, 1790.
In the year 1790, the now deceased Sir William Douglas, of Castle Douglas, Baronet, uncle to the claimants, executed a general settlement of his estate, whereby he conveyed to, and in favor of the said James and Samuel Douglas, and other persons therein mentioned, all of whom, however, have declined to accept his whole estate, real and personal, in trust, for the uses and purposes specified in the deed.
After desiring his trustees to make payment of his debts, and a great many legacies, the truster then gives directions to them as to the disposal of the residue of his estate, in these words:
(Here follows the first extract from the settlement, quoted in the preceding claim.)
This trust deed has taken effect by the death of the truster, Sir William Douglas, but previous to that event, the complainant's father, Mr. George Douglas, had died, leaving five children the claimants, and George Douglas, their elder brother,' of course they are entitled to the third which would have belonged to their father, but the trustees under that settlement, feeling a difficulty as to the division of the payment of this share, have brought the present process of multiple-poinding, libelling upon the trust deed and the clause immediately before quoted.
In which action your lordship was pleased to pronounce the usual interlocutor, appointing the raisers of the multiple-poinding to condescend, and all concerned to give in their respective interest or claims.
Agreeably to which appointment, the present claim is given in, and under a sound construction of the before quoted clauses of the trust deed, the claimants submit that they are entitled to be preferred upon the whole movable funds and estate in medio, and crave decree of preference accordingly.
In respect whereof,
(Signed) A. Wood.
IMTERLOCUTORS.
19 January, 1814. Lord Gillies. Act. Walker. Alt. Absent.
Finds the pursuers liable only in once and single payment, and ordains the defenders to produce their claims and interests in the clerk's hands within ten days, in order to a competition with certification.
(Signed,) Ad. Gillies.
12 February, 1814. Lord Gillies. Cause called.
Ordains the defenders to produce their claims and interests, and parties, procurators to debate thereon at next calling.
(Signed,) Ad. Gillies.
24 February, 1814. Lord Gillies. Act. Cranstoun. Alt. Clerk.
The Lord Ordinary having heard parties proc's, prefers George Douglas, eldest son and heir of the deceased George Douglas, of New York, North America, to the entire third of the heritable estates left by the deceased Sir William Douglas, and the claimants, Margaret, Harriet, William and Elizabeth Douglas, the younger children of the deceased George Douglas, to the third of the movables, reserving it to the heir to collate, if he shall consider that expedient, and all claims competent to either party against the other, sustains the claims accordingly and decerns ¦ of new ordains, the raisers of the multiple-poinding to lodge in process a condescendence of the funds in medio.
(Signed,) Ad. Gillies.
Signed, 1 March, 1814.
The Answer of the defendant, admitted the allegations of the bill, except where it is otherwise stated hereafter.
It set forth that the settlement of Sir W. Douglas, was an instrument peculiar to the laws of Scotland, and to be governed and carried out, in its execution, by thos,e laws. That besides the settlement, there were two codicils made thereto, by Sir W. D., dated December 11, 1800.
That when the defendant's father, George Douglas, Jr., died in 1799, all his children were minors, except his daughter, Margaret; and on the death of Sir William Douglas, one-third of his heritable or real estate devolved on the defendant, as the eldest son of George, and one-third of the movables or personal, on his brothers and sisters, with the right to the defendant to collate, according to the laws of Scotland.
That the trustees, in consequence of some doubts as to the devolution of the last mentioned third parts, and to resolve other questions arising in respect of the succession to the estate, caused an elaborate memorial to be prepared and submitted to counsel, copies of which were furnished separately, to Professor Hume, nephew of the historian, and afterwards one of the barons of the court of exchequer, Mr. John Clerk, afterwards Lord Eldin, and Mr. George Cranstoun, afterwards Lord Corehouse, the two last afterwards becoming judges of the court of session in Scotland, and three of the most eminent lawyers in the kingdom. That those gentlemen having separately considered the memorial, met in consultation, and, in the presence of the trustees, delivered full opinions, which were reduced into writing, and subscribed as their unanimous act.
That among the queries and answers, the counsel were referred to the clause in the settlement "dividing the residue of the trust estate ;" that it first declared that "the third of the brother pre-deceasing should descend to the heirs of his body ;" that it also says, "the children of my brother so dying, always succeeding to the third part of the remainder of my said estate and effects, to which their father would have succeeded had he been in life," that these two passages were apparently contradictory of each other. By the first, it is declared to go to the heirs as by the legal rule of succession, and by the last, the word children is substituted for the word heirs, by which it would seem to mean the whole children in precisely equal shares ; and the counsel were asked, whether under the clause so expressed, will the eldest son, (this defendant meaning,) of the deceased Mr. GeorgeDouglas, succeed to his/ather's third of the heritable real estate, or will the whole of the children succeed in equal shares to their father's third of the whole heritable and movable estate; to which the counsel, unanimously, gave it as their opinion, that from the clause referred to, Sir William Douglas intended, that the shares of any of his brothers pre-deceasing him, should descend to the issue of that brother, according to the rules of legal succession; that is to say, the heritage to the heir, and the movables to the executor; and that they were confirmed in this opinion by attending to a subsequent clause, in which Sir William recommends his brothers to settle their own estates, "with what they may succeed to by virtue of this present settlement, in such a manner as that the same may continue as long as possible in the male line." That hence, it appeared, he was desirous to aggrandize and perpetuate the families of his brothers in the persons of their male representatives, an object which would be, in a great measure, defeated, by a distribution of the property in equal shares among their issue. At the same time, the trustees were advised by the counsel, to bring those questions, and all others arising out of the settlement, before the court of session of Scotland, by raising the process of multiple-poinding, mentioned in the bill of complaint, to which all persons interested could be made parties, and the rights of all persons adjudicated, and finally settled, to have a true and binding judicial construction, and adjudication upon the settlement.
The defendant is informed and believes and avers, that the facts and circumstances above mentioned, and no other, were the reasons why the suit of multiple-poinding in the bill of complaint mentioned, was instituted in the manner and time in which it was so instituted, and that it was thus instituted out of abundant caution on the part of the trustees, that a matter of which the counsel had given their opinion, and the other matters submitted to the counsel, might receive the adjudication of the highest tribunal of Scotch law, in the manner pointed out by the laws and customs of Scotland; of all of which proceedings, and the suit thereupon commenced, the defendant is informed and believes and avers, the family of the deceased George Douglas in the city of New York were kept constantly informed by the trustees on their behalf, in a legal and proper manner: that thereupon, the trustees caused the suit to be instituted, set forth in the bill of complaint, as the defendant is informed and believes, at the time therein mentioned, for the purpose, primarily, as appears by the record of such proceedings, of settling and declaring the rights and interests of the parties defendants thereto, especially with reference to queries submitted by them to the counsel; and then as a natural result, the trustees, in their application to the court, aver, that they "ought and should by decree aforesaid, be exonerated and discharged of the offices of trustees of the said deceased Sir William Douglas, conform to the laws and daily practice of Scotland, used and observed in like estates."
And the defendant avers that process was duly issued, and served and returned in those proceedings, and the appearance of all parties, defendants, duly entered according to the course and practice of the courts and laws of Scotland; and that all the persons parties to the process of multiple-poinding, are bound and adjudged by the decree made therein, and can never question the same in anycollateral suit orproceeding. That as appears by the record, and as defendant is informed and believes to be true, defendant's brother and sisters, including the complainant, Elizabeth Mary, appeared by Alexander Young, of the firm of Young, Aytoun & Rutherford, writers to the signet, a highly respectable firm, and also by their counsel, Mr. Cranstoun, afterwards Lord Corehouse, Mr. Francis Jeffrey, now Lord Jeffrey, and Mr. Alexander Wood, Sheriff of Kirkcudbright, and this defendant also appeared, by his writer to the signet, and by his counsel, and the parties having been duly heard, a decree was made on the first day of March, in the year eighteen hundred and fourteen, in the words and figures following, to wit:—(Here follows the decree, as it is set out in the schedule annexed to the bill,) which decree this defendant is advised by his counsel, and respectfully insists, was, and now is a valid and binding decree, in full force, never reversed and appealed from, and is binding on all the parties to the suit; the matters in the suit being within the jurisdiction of that court, and the parties to the proceeding having been duly summoned, and having duly appeared therein, and that the same is now a valid and binding decree on them, and the subject matter of which cannot now be inquired into in this honorable court, and that the subject matter of that suit or proceeding having been adjudicated upon by the Scotch courts, their adjudication cannot be inquired into, except in the same courts, and in the manner provided for in the Scotch laws.
The defendant next insisted that the decree was correct, according to the laws of Scotland.
That he did not exercise the power to collate, given to him by the decree. That as the process between the trustees and defendant was a process for the final settlement of their trust, and of all claims of all parties on the subject matter of the suit or proceeding, the decree provides for the settlement of any claims any parties may have against another, upon the basis or principle by which the court had decreed the heritable to this defendant and the movables to his brothers and sisters. And this defendant is advised and believes, and insists, that all the proceedings in the suit were regular and proper, and that if the proceedings had not been regular and proper, this defendant cannot be called upon in any suit at law or in equity, relative to the subject matter of that suit, but that the same was a full and effective discharge and settlement as respects him, and that if the complainants have suffered any injury or any irregularity or impropriety in the suit, they must look to the trustees, who are alone responsible to all persons who may have been aggrieved or injured by such proceedings, or any matters connected therewith.
That as this defendant is informed and believes, the decree was immediately duly communicated to defendant's brother and sisters in New York, and up to a short time previous to the commencement of this suit, the complainants acted in a manner recognizing the decree as binding and effectual.
The defendant admits, that while the proceedings were in progress, although this defendant does not know whether it was at the commencement of them, and when the decree was pronounced, he was in Scotland, that he had then just arrived at his majority, and had proceeded to Scotland on a tour of pleasure, not of business; being a young man, utterly unacquainted with legal proceedings; although it was understood, generally, that he was to become generally acquainted with the situation of the estate, of which his family in New York had been constantly advised by the trustees, and look after their interests generally, but this defendant never had any idea, nor was it ever intended or agreed on the part of this defendant, that he should act as agent or trustee for any of the family of his father, nor appear at all in that capacity, nor was the defendant furnished with any authority for any such purpose, nor did he act at all as such agent or trustee.
That this defendant was ignorant of the proceedings, at the time they were commenced: he was never consulted, or advised; or informed of their commencement at the time: that he had no part or lot in instituting them, or any proceedings which led to their institution, and he denies that he had become a party to such proceedings, but he was made party defendant in the usual and customary manner, on no better footing, and with no other understanding not shared or possessed by his co-defendants.
That as this defendant is informed and believes, due notice, according to the laws of Scotland, was given to the younger children, of the matters which led to the suit, its institution, and the various steps which were taken in its progress; and defendant denies, as far as he was concerned, and he believes and denies as far as the trustees were concerned, that there was any intention of commencing the proceedings at an improper time, or in an improper manner, nor were they so commenced, nor were they hurried through, but the proceedings in the suit, as defendant is informed and believes, were conducted in a proper and becoming manner, with due regard to times, circumstances and parties; and the family and younger children were kept duly informed at the time, of the proceedings in the suit, and soon after its termination. furnished with a copy of the record of the proceedings therein. That the defendant is ignorant that the complainant, Elizabeth Monroe, or her guardians, did not employ Alexander Young, or any other person, to appear on her behalf, and leaves her to make proof thereof. And this defendant is advised and believes, and respectfully insists, that even if this were the case, which this defendant does not admit, this defendant is not to be affected thereby. That Alexander Young having appeared for those children, all the world, and the children are bonnd by his acts; that he acted throughout the whole of the proceedings, in a most judicious and proper manner for the interests of the younger children, and no person could have acted in a more judicious and proper manner; and the children have sustained no injury by his appearance for them, and that the children were represented by the most able writers to the signet and counsel at the Scotch bar.
That the complainant, Elizabeth Mary Douglas, and the rest of the younger children, before, and as they arrived of age, were fully acquainted with the appearance of Mr. Young on their behalf, and up to within a few years before the commencement of this suit, acted with a perfect ratification of his appearance, and have never called Mr. Young, or his representatives, to account for his appearance, nor taken any proceedings in that court relative thereto, to question or reverse the proceedings; and that they cannot now be questioned, reversed or nullified, in a collateral action in this country. And this defendant is further advised and insists, that as far as he is concerned, he is, by the proceedings in and nature of the process of multiple-poinding, fully discharged from ever being called upon by any person, relative to the subject matter of those proceedings; and if the same were not regular, the trustees have not been exonerated and discharged, and are still liable in that respect to the complainants, and whoever else may be entitled to call upon them. And this defendant denies that the complainants were ignorant of the proceedings, or continued to be so for many years, or that the decree was irregular, or that he ever acted under an irregular decree.
That this defendant's right to the entire third of the real estate being ascertained and settled by the decree, the same was sold, and defendant received the proceeds, as he was was entitled to d<5, both by the Scotch laws and the decree, for himself alone; and they are now invested as stated in the bill, of which the complainants and the rest of the younger children were fully advised; and even if the defendant had no right to sell the real estate, he is not accountable for the proceeds, or any part thereof, to the complainants. And this defendant is ignorant, and denies that the complainants, or either of them, except within a short time previous to the commencement of this suit, insisted that this defendant held the proceeds of the sale as trustee for Mrs. Monroe, or that he was bound to account to her upon the final settlement of the estate of Sir William Douglas, in case the portion received by this defendant should be more than one-fifth part of the estate, real and personal, appointed by Sir William Douglas to this defendant's father; and this defendant denies, that he ever received one cent of the proceeds of the real estate as trustee for her, or that he was ever bound to account to her, or any body else for one cent thereof, in any event. That in the year 1822, and constantly thenceforward, the younger children (having all arrived at full age,) by their legally constituted attorneys, and in person, were engaged in settling and converting into possession, the movable succession of Sir William Douglas, without this defendant's joining them therein, except as hereafter mentioned, or having anything to do with those settlements and arrangements, nor was this defendant ever consulted in any of those matters, except as hereafter stated; the younger children well knowing the decree, treating the same movable succession as theirs alone, and without consulting this defendant, or his joining them therein, releasing large claims relating to the movable succession, which the trustees had against various persons, arising out of the Galloway Banking Association, and the price of an Irish estate sold by Sir William Douglas in his lifetime, and finally ending in releasing the trustees themselves.
That the settlement of the movable succession, and its reduction into possession, was made by means of an arbitration, in the manner prescribed by the Scotch laws. James Douglas, one of the trustees, having died in 1821, leaving Samuel Douglas the sole surviving trustee, in April, 1822, a deed of submission to Alexander Cranstoun, of Edinburgh, as sole arbiter, was executed by the representatives of James Douglas, by Samuel Douglas, and by Alexander Blair, writer to the signet, as the duly authorized agent, by power of attorney for this defendant, and his brother and sisters, William, Margaret, Harriet and Elizabeth Mary Douglas. That the deed of submission, amongst other things, recited that the parties were desirous of settling all disputes relative to the heritable and movable property of Sir William Douglas, under the settlement; that the reason that this defendant became party to such submission, was that this defendant had disposed of his interest in the heritable estate, to take effect as of Whitsunday, in the year 1815, and from the death of Sir William Douglas up to that time, Samuel Douglas, the trustee, had received the rents and profits thereof; and the only inquiry and subject in which defendant was interested, under the arbitration, was the amount of the rents there received, and the interest to be charged thereon. And the same was set forth in the claim presented by Alexander Blair, for this defendant; and in the claim presented by Blair for the younger children, he called for them an account of the movable succession, and nothing else, and that the same be paid to the younger children alone; the decree being constantly referred to, as the basis of the submission, and all the proceedings therein.
That this defendant's claims to the rents of his portion of the heritable succession being settled, this defendant retired from the arbitration, and had and took no part therein, nor was he consulted or advised in any matter relative thereto, until he again appeared as one of the representatives of his sister Margaret, who had died in the mean time. That the younger children, sometimes in person and sometimes by attorneys, always impliedly and positively acknowledged defendant's title to the heritable estate, and carried on the arbitration to the year 1834, when the younger children, on a final winding up and settlement of the proceedings, and this defendant, as one of the representatives of Margaret Douglas, joined in a release of the trustees, in which it is particularly stated that this defendant was not interested in the personal succession, except through his then deceased sister Margaret, and further discharges of the same matters, on the receipt of further sums of money, were executed, dated February, 1836, and March, 1839.
In all of which proceedings, that this defendant had exclusive right to the heritage, and the exclusive right of the younger children to the movables, was in implied and in positive terms, expressed and declared, all the parties being then of full age, fully informed of the proceedings in the process of multiplepoinding, and of all of the proceedings in the arbitration. And this defendant avers and charges the fact to be, that the decree of the said court of session did mean, and was intended to conclude and affect his rights, and those of his brother and sisters, as between each other, as to who was entitled to the heritable, and who to the movable successions, and that whatever claims any of the parties thereto might have against each other, they could not and did not affect the decree of the court, that this defendant was entitled, as heir to the whole of the heritable succession, and the younger children to the whole of the movable succession. And there never was expressly or impliedly reserved, the rights to any party or all parties at any time, to call upon each other, for any distribution of the proceeds of the real and personal estate, or any part thereof, except that defendant was allowed as heir, the privilege of collating, if he should choose to do, which he did not, and the younger children to call upon one another for a division of the movables. And this defendant denies, that the complainants, if they ever had any right, were precluded from calling upon this defendant to account for any pretended alleged excess which he may have received. until the movable succession of Sir William Douglas was fully settled; on the contrary, this defendant never, by any agreement, reservation, restriction or understanding, was to be allowed, nor did he ever ask to wait till such settlement, to answer to any such claim: but the complainants have always been at liberty to make, and this defendant has always been in a situation ready, had such claim been made, to show it to be groundless, both in law and fact.
The defendant admits the death of Robert Halliday, as stated in the bill of complaint; but this defendant is ignorant that he kept the books of account of the estate of Sir William Douglas, as agent, as well for defendant as the younger children, or that any such alleged accounts will exhibit a just and true account of this defendant, and the younger children and Margaret, now deceased. Nor does this defendant know or admit that the younger children were not served personally with process in the suit or process of multiple-poinding, but he leaves them to make proof thereof.
That this defendant does not now remember what information he gave to his brother and sisters, or his mother and guardians of the younger children, and cannot answer the interrogatory of the bill in that respect, but he is informed and believes, and avers, that the trustees kept the younger children, their mother and guardians, fully informed of all the circumstances leading to the suit, and of the progress and result thereof.
And this defendant submits to this honorable court, that the bill of complaint, and the matters therein contained, are not sufficient in law for this defendant to answer the same, or for the complainants to receive or obtain the relief by the bill sought; inasmuch as the matters set forth in the bill, are matters exclusively and peculiarly cognizable by the laws of Scotland, where the land lies; by which laws alone, the rights of the parties could be legally determined, and the matters set up by the bill, were in point of fact, all duly investigated, and regularly determined by the judgment of the court of session, in Scotland, in manner hereinbefore mentioned. And this defendant, moreover, is advised and respectfully insists to this honorable court, that the judgment of the court of session, being between the same parties on the same subject matter, and the subject matter being real estate, situate in Scotland, and the matters in controversy in the suit, being within the jurisdiction of that court, and the decree remaining in full force, not vacated and never appealed from, the decree is a res adjudicata, and a complete bar to the present suit, and that if any irregularity has taken place in any of the proceedings, which this defendant denies, redress must be sought in the court in which the judgment was given, or by an appeal therefrom, or proceedings in the nature of an appeal therefrom, and cannot be taken advantage of in any collateral proceedings or action.
And defendant respectfully insists, that having acted under the decree, and upon its results since it was made, with full knowledge of its terms, force and effect, and having, by many instruments under their hands and seals, acknowledged and ratified the same, the complainants as well as the defendant, are mutually estopped at this late day, from denying or questioning the same. And this defendant being fully satisfied of the justice of his case, and the actors of the proceedings having, in the great lapse of time, most of them departed this life, this defendant respectfully insists upon the great lapse of time apparent from the foregoing facts, and that the complainants right or remedy, if any they ever had, is now at an end, and that defendant's title to the heritable estates, should now be allowed to repose at this late day, undisturbed; although this defendant now says, as he has heretofore, likewise, upon other occasions, declared, that he would not urge the lapse of time, except he was fully convinced that he was both justly and legally entitled to the property in question. And this defendant insists upon all of these matters, and prays the same benefit and advantage therefrom, as if he had specially pleaded each one separately, in bar to the bill of complaint, or specially demurred to the bill on account thereof.
The complainants filed a replication, and both parties proceeded to take proofs. The proofs would fill this volume. Their outline is reported, and the portion bearing on the points decided. The evidence on which the defendant relied to establish the homologation of the decree, is not inserted.
William Wilson, for the complainants, testified that in 1807, he, together with Mrs. Margaret Douglas, John Thompson, and John Taylor, were appointed by the surrogate of New York, guardians of the infant children of George Douglas, deceased.
That the witness knew nothing of the suit in the court of session in Scotland, and was not called upon to act in relation to the Scotch property. He heard the eldest son tried to get the real estate, and was entitled to it, or considered so. The witness did not, as he remembers, ever consent that Mr. Young, or James or David Hannay, should represent Mrs. Monroe in any suit or proceeding in Scotland; or give his consent to any proceedings that might affect her interest in her uncle's estate. Nor did any of the other guardians, to his knowledge. William Douglas?. one of the children of George Douglas, deceased, testified for the complainant, that the unequal distribution of Sir William's property between those children, was the subject of frequent conversation in the family, to the present time; and the claim of Mrs. Monroe to an equal participation with the defendant, has been uniformly asserted. The defendant has declared, that he would not avail himself of the statute of limitations.
Cross-examined.—The defendant has always insisted upon his right to the whole of the real estate, as eldest son, and that his rights were so adjudged in the Scotch courts. That he first went to Europe in 1812, and returned in 1815 or 1816. The family first knew of the decree of the Scotch court that he was to have the whole real estate, a year or two before his return, by information from Samuel Douglas. Witness's mother did the sole correspondence with the trustees of Sir William ; neither of the other guardians corresponded. Her correspondence with the trustees, was very active and frequent. It was carried on while the defendant was in Scotland. The defendant was about twenty, and had been out of college about a year, when he went abroad; and he had no knowledge of business. Mr. Halliday, who was his mother's agent till her death, looked after the interests of the family while he was in Scotland. He went before the defendant did, witness thinks. His mother was in the habit of consulting wiih Mr. Halliday, in reference to the interests of her children in the Scotch property. He was the agent for the family for 22 or 23 years after, and for the defendant, till his death.
Henry D. Cruger, testified for the complainants. The witness, in June, 1833, married Miss Harriet Douglas, the defendant's sister. In 1834, he went to Scotland to settle the estate of Sir W. D. (He detailed at large the proceedings in respect of the movable estate, which are omitted.) The witness proceeded, the testimony being objected to by the defendant, and the objection sustained by the examiner:
"When I went to Scotland, I considered it part of my business or agency, to examine into, and overhaul all the transactions in relation to Sir William xx(e)state in which my constituents had been concerned. Among the rest, I instituted inquiries how the decision above spoken of had been brought about. I waited upon Mr. Young, who appeared from the proceedings to have acted for the younger children. He was out of town, but 1 saw his partner, either Mr. Aytoun or Mr. Rutherford, at their office, and inquired of him by what authority their firm had acted for the younger children of George Douglas, of New York. He showed me the books and papers in the case, but no mandate, as he called it, or power of attorney could be found among them. I also instituted an inquiry in the proper office in Edinburgh, where powers of attorney relating to real estate are registered, and none could be found."
The witness further testified ; the last payment to the younger children on account of the personal estate, was in June, 1839, and the final settlement was in March, 1839, and it was not till then, ascertained how much more the defendant had received than his brother and sisters. In fact, he received no authority or instructions from defendant, except as in his power of attorney.
Cross-examined.— Mrs. Monroe was married in April, 1822, and was then about 22 years of age. Mr. Young was highly respectable, from what the witness heard of him in Edinburgh. He is now dead. The only offices in which the witness searched for the letter mandatory or power of attorney, from the guardians of the younger children to Mr. Young, were those of the register before mentioned, and of Messrs. Young, Aytoun & Rutherford. He did not go to search in the office of the register of the court of session.
The personal estate of Sir William Douglas, sustained a heavy loss after 1813, by the failure of the Galloway Bank ; and a heavy loss before by the failure of Anderson, of Fermoy, in Ireland, but the date of the latter, the witness cannot state. The share of the loss by the former, which fell on the children of George Douglas, deceased, was about £29,000, and that of Anderson's debt, about £5,800; as appears by the family archives.
Samuel Douglas died in April, 1824, and Mr. T. Cranstoun was made sole trustee in July, 1824.
The complainants, under a commission, examined as witnesses, John Anderson and Francis Anderson, writers to the signet, in Edinburgh.
The following are the interrogatories and answers. which it is deemed important to insert:
Fourth Interrogatory. Did Alexander Young of Edinburgh, writer to the signet, appear as the mandatory of the said Margaret, Harriet, William and Elizabeth Douglas, younger children of the said George Douglas, of New York, and put in a claim for them in such proceedings?
Fifth Interrogatory. If the preceding fourth interrogatory be answered in the affirmative, then state what authority the said Alexander Young had to appear and put in such claim? Did he ever receive any authority from the said children, or from their guardians in America, or from their guardians, curators or tutors, if any, elsewhere? If yea, produce such authority.
Sixth Interrogatory. Who is " A. Wood," whose name is signed to the said claim of the younger children, and who authorized him to sign his name?
Seventh Interrogatory. From whom did the said Alexander Young receive his compensation? Did he ever apply for a power of attorney, and to whom? Did he ever receive such power of attorney? State fully.
Eighth Interrogatory. Is any authority necessary to bind minors in legal proceedings? If yea, what authority, and from whom must it come? ,If Mr. Young be living, he will please to answer the foregoing questions, fully and particularly, and the other witnesses will be good enough to answer them to the best of their knowledge, and to state the grounds of their knowledge.
Tenth Interrogatory. Will you be good enough to explain if the following phrase, which appears in the proceedings in multiple-poinding, in the judgment or decree; "reserving all claims competent to either party against the other," have any peculiar meaning, as understood by the legal profession in Scotland? if so, what is that meaning? and will you likewise be good enough to explain if there be any peculiar meaning, and if so, what is the meaning of the following language, likewise used there—"sustains the claims accordingly, and decerns of new ordains the raisers of the multiple-poinding to lodge in process a condescendence of the fund in medio?" and who are meant by the raisers of the multiple-poinding?
The second cross-interrogatory inquired as to the respectability of Mr. Young and his firm, in 1814; and as to the character, private and professional, of Mr. Cranstoun, afterwards Lord Corehouse, Mr. Francis Jeffrey, now Lord Jeffrey, and Mr. Alexander Wood, sheriff of Kircudbright.
The third inquired, if Mr. Young might not have received authority to appear for the younger children, and the witnesses be ignorant of it.
The fifth, requested the witnesses to point out their authority, by law, book and page, in answering the eighth direct interrogatory.
Francis Anderson testified, in September, 1844, in answer to those interrogatories, that he was forty years of age, and his profession is that of a Writer to her Majesty's Signet in Scotland.
To the fifth interrogatory, he says he has no information to enable him to answer the question, except the letters and accounts mentioned. (These were all in 1834 and 1835, except the following:—
"4. Account received from Mr. Young, with the last mentioned letter, amounting to £29 11* 3d, and commencing 16th November, 1813, and ending 3lst March, 1814, and paid 27th September, 1815.")
Sixth. To the sixth interrogatory he saith, that the individual referred to, was then an advocate at the Scotch Bar; was afterwards Steward Depute, of the Stewardry of Kircudbright, and Dean of the Faculty of Advocates, and is now one of the Judges of the Court of Session, in Scotland. The remainder of this interrogatory he is unable to answer, otherwise than by referring to the letters and accounts mentioned in the answer to the fifth interrogatory.
Seventh. To the seventh interrogatory he says, that he was informed by the letter from Mr. Alexander Young, dated the 7th November, 1834; that he received payment of his account for conducting said process, from Mr. James Hannay. The witness refers to the letters and accounts specified in the answer to the fifth interrogatory, as containing the only information which he possesses in the matters embraced in this interrogatory.
Eighth. To the eighth interrogatory he saith, that the question is one of law, and more adapted for the opinion of counsel. As it has been put, however, he saith, that he considers the concurrence of a guardian or curator necessary to bind a minor in legal proceedings.
Tenth. To the tenth interrogatory he saith, that the words "reserving all claims competent to either party against the other," are words usually inserted in judgments analogous to that referred to, and imply that all questions or claims between the parties, arising out of, or incident to, the judgment pronounced, are left open for discussion; i. e. debts might be due from the estate, forming the subject of the action, and it might become a question whether these were to fall upon the heir or the executor, or to be defrayed from the real or personal estate: that the words, "sustains the claim accordingly and decerns," are words of style used in similar cases, and are applicable to the antecedent part of the judgment, and intended to give it effect: that the words, "of new ordains the raisers of the multiple-poinding to lodge in process a condescendence of the fund in medio" compose a separate branch of the judgment, and are to be read by themselves. That "the raisers of the multiplepoinding," is the technical term for designating the parties by whom the particular form of action or suit called a multiplepoinding, is instituted.
Eleventh. To the eleventh interrogatory he saith, that James Hannay has been dead for many years; that he is not aware whether David Hannay is alive or dead, but that the last time he heard of him, he was supposed to be living in France, or somewhere on the continent of Europe.
Second. To the second cross-interrogatory he saith, that he believes that Mr. Young was, in 1814, a partner. of Messrs. Aytoun & Rutherford; but he does not know when the firm of Young, Aytoun & Rutherford was adopted, and that said firm was considered very respectable. He saith, generally, with regard to the remainder of the interrogatory, that he considered that any party who entrusted the management of a case to the agents and counsel named, would be fully and ably represented, but beyond this, he can say nothing, as he has no information, save what appears from the action of the multiple-poinding, and the documents referred to in the answer to the fifth interrogatory.
Third. To the third cross-interrogatory he saith, that the answers to the fifth and sixth interrogatories supersede the necessity of any answer to this.
Fifth. To the fifth cross-interrogatory he saith, that he refers to the following passage of Mr. Erskine's Institutes of the Law of Scotland, Book 1, Title 7th, Section 13th, page 171, of ed. of 1824: "Where a minor is either pursuer or defender in any action, he must have a curator to support him in his prosecution or defence, under whose authority the suit may be managed, on his part, for sententia contra minorem indefensum lata nulla est. Whether, therefore, the minor be engaged in a law suit, with his curators, or having no curators, with a stranger, a curator ad lites must be given him by the judge, even though the nomination should be demanded from him, not by the minor himself, but by the adverse party, for every litigant has an interest that the proceedings in any cause in which he hath a concern, be regular: and if such curator be not demanded by either party, the judge ought to appoint one ex officio."
John Anderson, the brother and partner of the preceding witness, aged 45, concurred, in all respects, in his testimony.
The fourth paper referred to in Mr. Anderson's answer to the fifth interrogatory, was a copy of an account, in these words:
"James Hannay, Esquire, for the younger children of the late George Douglas, Esquire,
To Alexander Young, W. S., Dr.
1813 £ *. d.
Nov. 16. Paid postage from you with extracts of the minutes of a meeting of the trustees and heirs of Sir William Douglas, relative to a multiple-poinding, raised at their instance, 
£ s. d. Dec. 1. Paid carriage of a packet from you, 3
"3. Drawing memorial, respecting legacies left by Sir William Douglas, for the opinion of counsel; 10 sheets, 2 2 Dec. 6. Making clean copy thereof, 10 sheets, 10 "Paid Mr. George Cranstoun a fee at consulting
him thereon, 3 3
Dec. 6. Paid his clerks T &
"Attendance on him, Dec. 21. Paid postage from you, with inquiries, 9^
 "25. Making copy of Mr. George Cranstoun's opin- 
           ion sent to you, 6 pages, 
        Writing letter on that business, 
1814 

Jan'y 19. Attending the calling of multiple-poinding, 
  at the instance of Sir William Douglas' Trustees, 
  when the raisers were found liable in once and sim- 
  ple payment, 
Jan'y 30. Making a copy of Sir William Douglas' 

  Trust-right, 14 pages, 
Feb. 2. Drawing claim to produce in the multiple- 
  poinding, at the instance of the trustees, 4 sheets and 
  clean copy, 
Feb. 11. Drawing memorial for debate, 11 sheets and 

clean copy, Feb. 12. Making two clean copies of the claim attending the calling, when the claims were allowed to be seen, and parties ordered to debate, Feb. 15. Making another copy of the memorial, 22
pages, Feb. 22. Paid unrolling the process, 5
"23. Attending consultation of your counsel, to prepare to debate the cause, « Paid fee to Mr. John Clerk, 3 3
"Paid do. to Mr. Alexander Wood, 3 3
"Paid their clerks 7s. 6d. per 15
Monroe v. Douglas.
Feb. 23. Paid fee fund, dues of claim in the M. poind- £ s. d.
ing, 10
Feb. 23. Paid Clerk's assistant at lodging, do., 2
Feb. 24. Attending the calling, when the Lord Ordinary preferred the heir to the heritage, and the younger children to the movables.
Feb. 24. Revising and altering the claim according to 
  suggestions of Mr. Clerk, 

Feb. 24. Letter lo you, reporting the interlocutor of the 
  Lord Ordinary, 

Feb. 28. Postage from you about furnishing conde- 
  scence, &c., and with notice of Mr. Samuel Douglas' 
  being in Edinburgh, 8J 

Feb. 28. Answer, desiring him to delay until Mr. Douglas' return,
March 1. Paid for copy of interlocutor, "Making copy thereof, 2 pages,
March 22. Engaged for a whole day examining the sederunt book of Sir William Douglas' trustees
March 22. Drawing memoir on that subject containing an abstract of the funds sent to Mr. Samuel Douglas, 4 sheets and copy,
March 24. Letter to Mr. Samuel Douglas, enclosing abstract of Sir William's real and personal estate, &c.,
March 24. Attending meetings with Mr. Douglas, perusing cases, opinions and sederunt book,
March 24. Writing memoir of particulars to be communicated to Mr. Douglas, regarding the late decision, funds of division, &c.
March 25. To making copy of the inventory of the estate of Sir William Douglas, taken from the sederunt book, 10 folio pages, figures,
March 26. Letter to Mr. Samuel Douglas, returning letter book of Sir William Douglas' trustees,
March 26. Paid carriage thereof to his hotel, 6
March 28. Making a copy of the judgment of Lord Gil- 
   lies, in the question with the trustees and represen- 
  tatives of Sir William Douglas, 
  Vol. IV. 21 

«———¦>——- t
Monroe v. Douglas.
March 29. Letter to New York enclosing the same, £ s. d. and with detail of proceedings in that action, 14 pages,
March 28. Letter to Mr. Samuel Douglas including the same, to be forwarded to him,
March 31. Received a letter from Mr. Samuel Douglas, acknowledging receipt, and approving of the letter, to New York,
March 31. To allowance for the blank articles in this account, agency and trouble, 15 4
£29 11 3
1815 Sept. 27. By the amount by James Hannay, Esq., 29 11 3"
The complainants read in evidence, sundry letters from Samuel Douglas to Mrs. Margaret Douglas, and from the latter to the former; and others were produced by the defendant. A few extracts are given from these letters.
Exhibit A.—Mr. S. D. to Mrs. M. D., dated London, December 22d, 1810.
First referring to his letter of November 9, 1809, with general state of Sir W. D.'s affairs, and extract from his will, &c. "For the information and guidance of the trustees, we had a memorial drawn up, stating all the points we could think of, relating to the will, on which we wished to take the opinion of counsel, which memorial we took with us to Edinburgh, where it was again considered and revised by brother James, his son and myself, along with our Galloway and Edinburgh attorneys, when the same, with a copy of the will to each, was put into the hands of three counsel of great respectability, whom we mutually fixed upon for that purpose, and they, after considering the same separately, had a meeting and gave a joint answer. A copy of the memorial, and the answer of counsel, I herewith send you. This I would have sent you long ere now, but I was in hopes, from time to time, of being able to come to London, where we thought it would likewise be proper to take the opinion of English counsel on the whole case, and I thought it would best that all the opinions should go out together to prevent confusion and perplexity, as most likely they would be different on some points. But the English opinions I decline taking till Mr. William Douglas comes to London in March or April next, because they will have more weight, and be every way more satisfactory when taken by us jointly, than if either of us were to take them separately, for I consider Mr. William Douglas as acting for his father, when he authorizes and sanctions it, and he is the only other trustee besides myself, as Sir William Shaw declines acting at present for the reasons he has stated in his letter to you by the December packet, but we will at all times have the benefit of his best advice and assistance. The opinions out of doors have been various on several points of the will, especially as to the form in Wales, and the two farms in Scotland, all three purchased since the date of Sir William's will, and not mentioned in it. And also, whether your son George will succeed to the one-third of the landed estate in Scotland, as heir-atlaw of his father, or that the same shall go equally among all your children, the same as the one-third of the residue of the personal effects. Such matters, I apprehend, will very much turn on mere points of law, and I suppose of Scotch law, as Sir William's residence and property were principally in that country, and his settlement was made and executed there."
Further on, he speaks of its being perhaps necessary to have recourse to a court of law, to obtain a decision on some particular points, and suggests, if so, that it would be done in a friendly manner, without interrupting the harmony of the family. He mentions the Irish debt, as being £183,169 Irish, all owing, and the last not due till 1818.
This letter is indorsed as having been answered April 29,1811, by Mr. Halliday.
Exhibit B.—Mr. S. B. to Mrs. M. D., dated London, July 18th, 1811, in answer to the preceding:
"Nor did we think it would be either useful or necessary to take any more law opinions at present, for after the very full and deliberate opinions we have already taken at Edinburgh on almost every point, more opinions would only tend to confuse and perplex us all, and would not, most likely, be decisive as to all the parties, for I apprehend there are several points which will require the legal decision of a court of law, which may be obtained in a friendly way, by only fairly stating the question, and producing the original settlement. But all such matters will be delayed till your son George arrives in this country."
"As to George's claim to his father's share of the real estate, that is a matter which the Scotch law must decide, for whatever notions of equity we may entertain in such matters, we must be aware that no such notions will influence the decisions of our courts of law, when they have a regular settlement duly executed before them. It is only desired by us all, and indeed, it is indispensably necessary and proper, that all parties should know their rights, and have their rights agreeable to law, so that all matters may be set at rest, and to prevent all future difficulties, for we cannot alter settlements, or act from our own feelings or various notions of equity, but must take the settlement as it is, and be thankful and grateful for what has been done for us generally as a family. By the English law, and the manner of the execution of the settlement, the Welsh estate would go to the heir at law, my brother James, and the same by the Scotch opinions, only with this difference by the latter, that he must bring in the price of it into the general personal estate. I cannot pretend to say how it will be, and I merely state all these matters to you as they occur to my own mind, and from what 1 have considered and what I have heard on the subject. We have our man of business at Castle Douglas, also at Edinburgh and London, to consult with. You have the guardians, your children, and perhaps some legal or other friend to consult with, and perhaps it may be as well that we should not go any further for a while in exposing our papers and our affairs to strangers, at least till we see George, and that you hear further from him and us on the subject, I have nothing to require from your side, or to recommend in the present situation of the estate, till George arrives, and we all meet in the country, when we will consider what is most advisable to be done for the general interest of all parties."
He speaks of the bank contract as binding the whole of the estate for many years to come.

Exhibit 0.—Mr. S. D. to Mrs. M. D., dated Edinburgh, Feb. 8th, 1815:
"I congratulate you most heartily on the return of peace between Great Britain and America, and though we do not know the particulars, till we have it from your side after ratification, yet be it as it may, I sincerely hope it may long continue, for the mutual benefit of both countries, and that the intercourse and correspondence between relations and connections will thus be restored again, without these interruptions, which have impeded it for some time past. I am sure you will excuse me for not writing you so frequently as I used to do, when I assure you that I only abstained from doing it during the time of hostilities, least such a correspondence, at such a period, might occasion unnecessary hazard or alarm to your family; besides, I was satisfied that George would embrace every suitable opportunity of letting you hear from him and of us, and through the same channel, we were occasionally hearing from you, as you and he were more in the way of knowing such opportunities when they occurred, than I could be in the remote quarter where I have constantly resided for the last twelve months. George will have informed you of the decision of the court of session in his favor, of the third part of the heritable part of his uncle's estate in Scotland, and the personal part to his brother and sisters, and also of an ill-natured prbcess that has lately been raised against Mr. Napier, (and the company,) the sole manager of the Galloway Bank, the particulars of all which will be sent to you when I return to the country, and get some person to copy writings for me."
"The last letter I have from you, is dated, I think, January 20, 1814."
Subsequent letters speak of the Galloway Bank as having turned out disastrously, and the Irish debt as being compromised.
In Exhibit G., Mrs. M. D. to Mr. S. D., dated August 22,1810, she mentions a letter just received, from James Douglas. She says she is the acting guardian of her children, and all communications are addressed to her, and by her made known to the other guardians.
Exhibit H.—Mrs. M. D. to Mr. S. D., dated April 27th, 1811.

She speaks of the letter from James D., as having inclosed one from James Hannay; and mentions the receipt of S. D.'s letter of Nov. 7,1810, with the memorial and opinions of the lawyers. She says Mr. Halliday goes to Europe, to-morrow, and will be her temporary representative to consult with and be consulted by Mr. D., on the law points and other matters.
"I feel a greater anxiety to see this statement," (referring to her doubt whether S. D. intended to sell to W. D. the whole of Sir W. D.'s lands, or only the castle property ;) " I hope the subject will be placed in a light that I may have it in my power to give a satisfactory answer. Had I been so fortunate as to receive the statement of the estate you promise, previous to Mr. Halliday's departure, I should have been able to write more explicitly, however, when I do receive it, and Mr. Halliday's, they will, I hope, enable me to conclude this business, as far as depends on me, as the relief no doubt will be great to you, whenever it is satisfactorily arranged. There is a point that seems rather ambiguous in your letter, that I beg you will elucidate in your next; whether you intended the whole landed estate in Scotlaud, of which Sir W. D. died possessed, and which are enumerated under different names in the will, to be estimated and offered to Mr.Wm. Douglas, or only the castle and lands belonging to it." "As if the law should decide that George is to succeed to his father's third of the heritable property, it would enable me to judge what comparison his share would bear with that of his brother and sisters. It is an important question, which the law must decide. Equality in this case appears to be justice, and I believe it was his uncle's intention, or he would have expressed the clause more clearly. The new settlement confirms this belief, as in that he makes them all equal; this is also the opinion of the guardians, therefore I am anxious to know if we can influence the decision, and request to be particularly advised on the subject by you. I am glad to hear that the banking concern is likely to turn out very advantageously. I am very grateful to you for your renewed assurances of acting in every respect for my family as you would for your own, and I should be perfectly at rest, did I not fear to trespass too much on your goodness. ,4.s to appointing an agent, I have never contemplated it, but as relief to you, and on this subject Mr. Halliday will converse with you and inform me." Exhibit I.—Mrs. M. D. to Mr. S. D., dated November 4,1811: "I have already intimated in my letters, that 1 would send George to you when he had gone through this college, therefore I see that you expect him this fall. He graduated in August, and was much applauded for the oration he delivered at the commencement. His diploma was accompanied with some commendation from the Professors, but I think he has just attained knowledge sufficient to give him a clear view of what he has yet to acquire. As to his representing our interests in his uncle's estate, you must be aware from your own experience, that a classical education, though proper for a boy in his situation, does not qualify him for business immediately on his leaving college; indeed, if they attend properly to their duties, while there, it leaves no time nor opportunity for acquiring any kind of worldly or practical knowledge; therefore, had I sent him this fall, it would have been of no relief to you."
Referring to the memorial and opinions forwarded to her, touching Sir W. D.'s will, and commenting upon them, she says :—" But I will suspend further remarks on this subject, as it is one of the points that must be decided by a court of law, trusting that you will always apprise me, previous to any application for such decision." Exhibit J.—Mrs. M. D. to Mr. S. D., dated October 15,1816: After saying she had replied to his full letters every little while George was with him, always relying on S. D.'s good management for the interests of her children, she says,— "George told me you would write a full account soon after he got here, and always referred me to that for my further information about it; he merely told me that he had sold his share of his uncle's estate to his cousin William, and had never mentioned the circumstance before in any of his letters. I could not disapprove of the sale, as it was by your advice; of the terms, whether good or bad, I of course could not be a competent judge had I been consulted, but am happy they were of the purchaser's proposing, and that you continued satisfied with them when he left you. George is now competent to manage his own affairs. With respect to the property of my other children in your hands, we still depend on you, for all our information about it, as George has not possessed himself of any. I have not, however, been anxious, but was satisfied while it remained under your management, the duties of it would be faithfully discharged. The perfect confidence I feel, and have always taught my children to place in you, together with your implied dislike to the interference of an agent, have hitherto confined our attention to the business, to grateful acknowledgments, and formsake notice of your full and patient details of the concern. Your letters and papers we read attentively when they arrived, and occasionally afterwards, but no lawyer or man of business has ever seen them, who alone would give efficient answers to many points they contain, should it now be time to take up the affair in a.more business like manner."
"George has never given me any reason why he abandoned his determination to study a profession. It was my anxious wish and particular direction to him to do so, and my sole motive in sending him to Europe; in place of that, he has spent a large sum of money, and is as much incapacitated as ever to assist me in the business."
The defendant put in evidence the memorial and queries submitted by Sir William Douglas's trustees to counsel, referred to lis answer; and the answers thereto, of Messrs. David Hume, John Clerk, and George Cranstoun, dated February 6th, 1810. These were marked Exhibit 15. The twelfth clause of their opinion is as follows: "12th. We are inclined to think, from a perusal of the clause referred to, that Sir William Douglas intended that the share of any of his brothers pre-deceasing him, should descend to the issue of that brother, according to the rules of legal succession, that is to say, the heritage to the heir, and the movables to the executors, and we are confirmed in this opinion by attending to a subsequent clause, in which Sir William recommends to his brothers, 'to settle their own estates, with what they may succeed to in virtue of this present settlement, in such manner as that the same may continue as long as possible, in the male line.' Hence it appears, he was desirous to aggrandize and perpetuate the families of his brothers, in the persons of their male representatives, an object which, in a great measure, would be defeated by a distribution of the property in equal shares among their issue. At the same time, for the security of the memorialists, it may be advisable for them to have it tried in the court of session, by calling the children of Mr. George Douglas in an action of multiple-poinding, having previously given them notice that they, and the guardians of such of them as are minors, may authorize appearance to be entered for them in that action."
"14th. If the eldest son of Mr. George Douglas succeed to his father's third of the heritable property, we conceive that he will not be entitled to claim from his brother and sisters any share of the movables, unless he shall offer to collate the heritage with them, but that he will be entitled to collate if he chooses."
Exhibit 39.—Mrs. M. D. to S. D., dated December 29th, 1812; the postscript is as follows:
"P. S. Since writing the above letter, Mr. H. has returned; he says, you seemed desirous we should appoint an agent, if an eligible man could be found. I am willing to adopt any such measure, and as I wish you by no means to depend on or consult George with respect to the management of his own interest in the estate, or that of his family, being too young and inexperienced to be any judge in matters of this kind, even if he were old enough to ratify. This is also Mr. H.'s opinion. If you continue to desire an agent, please name one. there is some probability Mr. H. or myself may be acquainted with."
Wm. Betts and G. Griffin, for the complainants argued the following points.
1. This court has full jurisdiction to decide in relation to the construction and intent of Sir William Douglas's settlement or will; and is not precluded by the ex parte proceedings of the Court of Session in Edinburgh.
2. The proceedings under the arbitration and submission to Vol. IV. 22

Mr. Cranstoun, are perfectly consistent with the idea of the defendant being a trustee as to the complainants portion of the purchase money of Castle Douglas; and were not intended as, nor do they approach, a ratification of the construction given to the will in the above mentioned ex parte proceedings.
3. Lapse of time is not applicable to this case.
4. The Will or Settlement of Sir William Douglas, intended to place the three families of James, Samuel and George Douglas, in precisely the same situation, and in case of the death of either of his three brothers before the testator, the children of such person were to succeed to the part designed for their father. (6 Ves.99 ; 4 Mass. 208; I Ball & B.460 ; 4 Hill, 492; Ambler,
'273; 2 Burr. 1100; 6 Taunt. 94.)
Mr. Betts, in support of the point that the proceedings in the Court of Session were not a bar to the complainants. (The report of the arguments of the respective counsel, is confined to this point.)
The younger children of G. D. were not represented, and had no opportunity to be heard, in the suit in Scotland. The proofs are conclusive to show that they did not have notice, and that neither they or their guardians knew nothing of those proceedings. The appearance of Mr. Young in their behalf, was whollygratuitous and unauthorized by them. He was employed by Mr. Hannay, the agent of Samuel Douglas.
The law of Scotland, as proved, requires that minors shall appear by a curator; and if they have none, the court appoints one. In the multiple-poinding, they did not appear as infants at all, but as persons of full age; and probably Mr. Young did not know they were infants.
The record shows that the proceedings were all conducted by consent. The younger children were made to claim the movables only, abandoning the inheritance without even asking the judgment of the court.
The dates show beyond the possibility of a doubt, that the infants could not have been represented, directly or indirectly. The suit was commenced October 7th, 1813, and the decree made February 24th, 1815. At that period, vessels were from forty to fifty days in passing between Great Britain and the United States. It was during the war, flagrante bello, and the communication between the two countries, was not only indirect, but casual.
The judgment was therefore utterly invalid; in the language of Erskine, "nulla est.'' An unrepresented person is never bound by a judgment or decree. It is true, where an infant appears by attorney, after being served with process, the judgment is not void; it is erroneous merely; but this does not apply when he is not served at all, and employs no one to appear for him.
On the practice in Scotland, the counsel cited Ersk. Instit. B. 1, Tit. 7, § 14; Macallan's Pract. Dig. 268. As to the invalidity of the decree of the court of session, he cited and commented on 2 Kent's Comm. 102; Cowen & Hill's Notes to Phill. Ev. 894; Fisher v. Lane, 3 Wils. 297; Hitchcock v. Aickin, 1 Gaines,. 460; Borden v. Fitch, 15 Johns. 140; Starbuck v. Murray, 5 Wend. 148; Shumway v. Stillman, 6 ibid. 453; Bradshaw v. Heath, 13 ibid. 407; Barr v. Gratz, 4 Wheat. 213; Hollingsworth v. Barber, 4 Peters R. 466; Psyche v. Paradol, 6 Louis. R. (Curry's,) 376.
J. N. Piatt and /. W. Gerard, for the defendant, made the following points:
I. The allegation in the bill, " that the appearance of Mr. Young as mandatory for Mrs. Monroe was unauthorized by her or her guardians," is unsustained by proof sufficient to call upon the defendant to show the authority, after the lapse of more than a quarter of a century, and the mandatory, the trustees in Scotland, all the guardians here but one, and all the actors being dead. (2 Campb. 502; Tifton v. MayfielcPs Curators, 10 Louis. R. 189; 2 R. S. 282, § 2, 493, § 21, 24, 2d Ed.; 10 Peters, 449.)
II. But if the negative evidence of Mr. Wilson, after the lapse of 27 years, can call upon the defendant to show authority for the appearance of the mandatory, and if no special mandate is to be presumed, such authority is clearly proved by the correspondence between Mrs. Douglas the acting guardian, and Mr. Samuel Douglas the acting trustee, constituting him the general agent of the children to attend to their interests in the estate generally, including the settling of their rights under the will by an amicable suit in a Scotch court. (7 M. & W. 400 ; 1 Hill, 143.)
III. But if the complainants brush away the Scotch decree, and this is now a res Integra, and not a res adjudicata, there are no proper averments in the bill, nor is there any proof, that by the Scotch law, (by which the rights of the parties must be decided,) all of the children of George Douglas deceased take equally a share of the real and personal estate under the legal construction of the will. The bill is not so framed as to put in issue, take proofs, and call for adjudication on the rights of the parties under the Scotch law, independent of the Scotch decree. But if it were, by the Scotch law the defendant took the heritables under the will, if not also the movables. (3 Wheat. 212; 9 ibid. 565; 10 ibid. 192, 465; Macallan 51, 53; 1 Bell's Comm. Laws of S. 100.)
IV. The Scotch decree, with full knowledge, by the family in America, was never questioned on the ground of want of authority in the mandatory to appear for Mrs. Monroe, and the other children, until this bill was filed; but was acquiesced in, and expressly acted upon and ratified by numerous solemn acts, running through a long series of years, up to 1839.
1st. By the guardians of Mrs. Monroe during her minority.
2nd. By Mrs. Monroe herself, after arriving at age and before marriage, and
3rd. By herself and husband since marriage, and also by her trustees. These acts, and the decisions of Mr. Cranstoun, amounting not merely to a homologation of the decree of the court of sessions, but in fact to a new adjudication of the title of the defendant. (11 Wend. 85; 10 Peters, 449.)
V. A court of the United States, cannot settle and adjudicate upon the title to lands, lying in Scotland; although the claim may not be to recover the land in specie, but the proceeds of the sales of the land. ( Watts v. Kinney, 6 Hill, 86; Ersk. Inst. B. 1, Tit. 1, § 10 ; Story Confl. of Laws, § 551 to 555; Livingston v. Jefferson, 1 Brockenbr. 203.)
VI. The decree of the Scotch Court, being founded on the construction by the Scotch law of a will made in Scotland, by a person domiciled there, disposing of lands situated there, the decree regular on its face, and the parties appearing and litigating; is binding and conclusive, as a decree in rem, in all courts and in all countries; binding upon and disposing of the title to the property. If the parties are bound in rem, in Scotland; they are bound for the proceeds, the world over. (Story's Confl. of Laws, § 548. 548 a, 556 to 558, 591, 592 a, 598, 599, 604; 1 Phill. Ev. 349, 352, and Cowen & Hill's Notes, 891 to 895; 3 John. 168; 5 Paige, 304; 4 Cowen, 294; 8 ibid. 311; 4 Binney, 371; 3 Wheat. 246; 6 ibid. 109.)
VII. An original bill cannot be filed in the court of chancery, to set aside a decree obtained in another court even in personam, for irregularity, but only for fraud, which is not put in issue by the bill. ( Wright v. Miller, 1 Sand. Ch. R. 103, and the cases there cited.)
VIII. A decree of the court of session, regular on its face, as this is, can never be collaterally questioned in a bill to set it aside. If irregular, the court in which it is obtained, is the only tribunal that can revise it. It is binding in rem, and the parties are estopped from contesting it here. That court can alone sit in judgment upon it; even although infants are concerned who erroneously appear by mandatory or attorney. (6 Cowen, 456; 2 Edw. Ch. R. 289; 4 M. & S. 20; 2 Hill, 64; 2 Peters, 162; 2 Howard's U. S. Rep. 319, 338; Mclntyre's Trustee v. Collins, 13 Shaw's Rep., Scotland, Nov. 28,1834.)
IX. The claim made by the complainants in their bill, is inconsistent. They say the decree is void, and of no binding force on them; yet they affirm the defendant's title and the sale made by him, and claim a share of the proceeds. If the decree is of no avail against them, they have their remedy in Scotland, against the land itself; and if the decree does bind them, there is an end of the case.
X. The lapse of time since the decree was obtained, (more than a quarter of a century, before this suit was brought, although the parties had full notice of their claims, if any they had,) during which time all the parties who could show the authority to appear, have died; is a sufficient answer to the bill.
Mr. Gerard, in support of the validity of the decree. The effort is to reverse the decree of a court of competent jurisdiction, made, at the locum rei sitae, upon a question depending upon the law of that place, after an acquiescence of twentyseven years. And the complainants whole case turns on the pivot that Mr. Young had no power to appear as mandatory in suit. They concede the proceedings to have been regular and fair, with that single exception. The bill does not allege that a tutor or curator should have appeared, instead of a mandatory; nor that a mandatory could not appear for an infant. And there is no allegation of fraud or collusion on the part of the defendant, from the beginning of the bill to the end.
As to Young's authority. Every presumption should now be made in its favor, from the lapse of time. Mrs. Douglas, the mother, was a lady of unequalled ability and perseverance, care and judgment. Samuel D. was a man of great caution and prudence. Mr. Young is admitted to have sustained the highest character. Mrs. D. was apprised years before, of the necessity of the proceeding, and that she must provide for her children's being represented. The circumstances suffice to prove authority; instead of disproving it, which it is incumbent on the complainants to do. The search for the power, by Mr. Cruger, was in the wrong place.
The bill does not allege, nor is it proved, that any written authority was necessary. Mrs. Douglas's letters furnished abundant authority to Samuel D., and he employed Mr. Hannay, Sir William D.'s former agent. He was expected to act for the New York family. Some letters referred to in the correspondence are not produced. although all these papers have been kept in volumes, with extraordinary care. The acquiescence, and acts in accordance with the decree, are sufficient evidence of an original authority in Mr. Young to appear.
Assuming there was no authority, and that a guardian or curator ought to have appeared, and not a mandatory, and that the decree was made without argument, it is merely erroneous. It is voidable, not void; and is binding until reversed or set aside, by the same or an appellate court. There is no evidence that such is not the doctrine of the civil law and of the law of Scotland. The Messrs. Anderson do not tell us what is the consequence of such an irregular appearance by an infant, or even what a mandatory is. As to there being no argument or adverse claims made, Mr. Young's account, proved by the complainants, shows that claims were first drawn out and submitted to the court, and after the judge intromitted his opinion, the claims were revised and altered to conform to his decision. See Mr. Y.'s entries and charges, under date of Feb. 2, Feb. 12, and Feb. 24th; and the decree itself shows this was the course pursued.
This decree, is regular on its face, and binding in Scotland. The effect of such a decree here, is very different, when brought forward as a defence, and when made the ground of an action. And the effect of a decree or judgment, as to personal property, is often widely different from that of one respecting real estate. The cases cited on the other side, are all those in which a party has prosecuted the foreign judgment, recovered originally in personam. Where the foreign judgment is in rem, and the defendant has been notified according to the lex fori, the judgment is conclusive every where. The presumption is in favor of its regularity, and it must be proved affirmatively to have been irregular according to the foreign law.
The civil law courts differ from those of the common law, as to the notice to defendants. The former frequently act upon constructive notice, as is done in our court of chancery. (Mr. Gerard commented at large, upon the authorities cited under his sixth point.)
Again, a decree regular on its face, cannot be questioned Collaterally. The case of Grignon's Heirs v. Astor, 2 Howard, 319, 338, is perfectly decisive.
G. Griffin, in reply.
A preliminary objection to the jurisdiction of this court, is made, because the land was in Scotland. The case cited from 6th Hill, was one of venue, in a court of law. By our decisions, chancery has jurisdiction against the person here, for property situated abroad. It is not confined to venue, or to geographical limits. It is sufficient that the person is within its jurisdiction, or the subject matter, or its representative, no matter where it arose; and the court. to deal with it according to equity, will master all the dialects of which Babel was the mother. If the party be within its jurisdiction, it will foreclose a mortgage, or decree specific performance, of lands in Europe. It will put its strong hand on a debtor, and compel him to appropriate his lands in the four quarters of the globe. Whenever a defendant is liable on a contract, or as a trustee, or as the holder of a legal title acquired mala fide, our court of chancery will proceed, though the suit may require the investigation of a foreign title, in a foreign land. (1 Vez. Sen. 444; 2 Paige, 402, 614; 9 ibid. 280; 3 Ves. Jr. 170; 2 Kent's Comm. 463, note a; 2 Story's Eq. Jur. § 743; Story's Confl. of Laws, § 544; Hopk. R. 213; 6 Cranch, 158; 1 Sumner, 504.)
Next as to the force and effect of the Scotch decree. It is a fundamental principle in all civilized countries, that a judgment recovered against a defendant, in a foreign country, without service of process on him, or without his appearing in the suit, is a mere nullity. And where there is a recorded appearance, he may prove it was not by his authority. A domestic judgment cannot be collaterally impeached; and it has been thought the same credit is due in one of our states, to the judgment of a sister state. Hence some of the dicta cited on the other side. (Story's Confl. of Laws, § 546.)
Here there was no service of process on the younger children. But appearance may obviate that. Was there any authority for the appearance in this case? None emanated from the children or their guardians.
If there were authority, the decree is a nullity, because the infants appeared by a mandatory, instead of the proper guardian. This is proved to be the law in Scotland, and there is no contradictory evidence. No matter what the law is in New York or the United States, the Scotch law declares it nullim, void. This is a vital defect. The court of session was doubtless deceived as to this all important fact, that these children were minors. But all the other parties knew it, and this defendant, who was there, knew it.
But there was no authority. Mr. Young supposed the children were adults, for he asked for a power of attorney. He was employed by the lawyer of the trustees, and neither of them were authorized. Mrs. Douglas gave no authority; nor could she, as one of four guardians. Indeed, all the guardians here, could not have granted a sufficient authority to enable an appearance to be made in Scotland; and if it had been attempted, the court there would have appointed their own tutor.
This omission was not a sin of ignorance. The opinion of the counsel in 1810 apprised them of its necessity, and Mrs. D. desired Samuel D. to advise her beforehand of any suit affecting this question. Yet her first knowledge of this suit, was a year after it terminated. Instead of Samuel D. being the agent for Mrs. D. or her children, or having any authority, he kept urging her from 1810 down to 1820, to appoint an agent in England or Scotland.
The simple truth is, there was no power. Those gentlemen, the trustees, with a morbid desire to have Castle Douglas vested in James's son William, and thus keep up the family state, proceeded without any authority. The decree was, therefore, without jurisdiction, and void. The court could not acquire it against foreigners, without the service of process, or an opportunity for them to appear. There was neither in this case, and it lays the axe to the root of the tree.
Nor is this all. The claim put in for these infant children, renounced the realty by claiming the movables exclusively. It cannot be pretended that such a claim was ever authorized. The attempted explanation is not proved, nor is it probable. Such a submission to the judgment of the court, and revising the claim, was never heard of. It could be of no use, and would cut off the right of appeal. The proceeding was one of exoneration, emphatically—to save the executors harmless. It was a sham proceeding as to any purpose of trying titles to the Scotch real estate, as between the children of G. Douglas. The amount of fees paid to the counsel shows this; and that they were three mutes, employed to give dignity to the proceedings. It was not xxxn judgment upon argument. It has not even the dignity of a judgment by default. It was an amicable suit, of which we were wholly ignorant.
Now as to the alleged sanctity of foreign judgments. We do not attack this decree as exonerating the trustees; nor do we impeach the title to the land held under it, as was done in 2 Peters and 2 Howard, cited by the defendant. A foreign judgment is impeachable, whether produced for attack or defence, if it appear to have been obtained without appearance or service of process; and that suffices here as between those who were defendants in the Scotch suit. It is an everlasting principle of justice, that no man shall be condemned unheard. Such a judgment as this, is a private hostis humani generis. The cases in 15 Johns. 121, and 6 "Wend. 447, are fatal to the distinction maintained on the other side. The whole thing was a matter of arrangement, or it was a fraud upon the court and the youDger children.
The Assistant Vice-chancellor.—The decree of the court of session in Scotland, entered in 1814, has a very important, and in one aspect, a controlling influence in this cause; and before observing upon either of the other questions, which, very interesting as they were in themselves, were rendered peculiarly so by the ability of the argument on both sides; I will examine the effect of that decree upon the rights of the children of George Douglas. Junior, in the heritable estate of Sir William Douglas.
The bill sets forth the process of multiple-poinding and exoneration, the proceedings thereon, and the decree. It alleges that Mrs. Monroe was then an infant of tender years, residing in the city of New York, where her guardians also resided; that no process was served, and no notice given, either to her or her guardians; that the proceedings in Scotland were hurried through, between the 7th of October, 1813, when they were commenced, and the 24th of February, 1814, during a period of active war between Great Britain and the United States, and while no intercourse was kept up, and no communication had, between Scotland and the United States ; that Mrs. Monroe as an infant, was incapable of employing, and neither she nor her guardians did employ, Mr. Young, who, by the record of the process, is represented as having appeared for her; nor did she nor they, employ any other person. The bill also states her ignorance of the proceedings till long afterwards; and avers that the decree reserved the rights of the children of George Douglas, Jr., as between themselves.
The answer insists that the proceedings in the multiple-poinding, were regular according to the Scottish law, and decided the rights of these parties as between themselves; that the decree is still in full force, valid and binding on the parties thereto; and the subject matter thereof having been adjudicated upon by the courts of Scotland, such adjudication cannot be inquired into in this court, or elsewhere, except in the court where it was rendered, and in the manner provided by the laws of Scotland; and the defendant sets up the decree, as a complete bar to this suit.
At the hearing, the complainants counsel contended that the decree of the court of session was null and void, having no force whatever, because Mrs. Monroe was never domiciled in Scotland, she was not served with any process in the suit in which the decree was made, and the appearance that was entered in her behalf, was wholly without authority; and because no decree could be made against her, an infant, until a tutor or curator ad litem had been appointed to represent her in the suit.
The general principles applicable to this subject, are well settled and established in countries where the common law prevails. Where the matter in controversy is land, or other immovable property, a judgment pronounced in the forum rei sitae, is held to be of universal obligation, as to all the matters of right and title, which it professes to decide in relation thereto, and absolutely conclusive. And in whatever place the proceeds of the same property may afterwards be found, such judgment acting in rem, will be held equally conclusive, by whomsoever the title may be questioned, and whether it be directly or incidentally brought in controversy. (Story's Conflict of Laws, § 59 1 to 593, and 549 note; 3 Burge's Commentaries on Colonial and Foreign Law, 1015, 1062, 3, 1066.)

This is founded on the principle, applicable to judgments in rem, against every species of property, as well as to many of those in personam, that it is the province of every sovereignly to administer justice in all places within its own territory, and under its own jurisdiction; to take cognisance of crimes committed there. and of the controversies that arise within it. Other nations ought to respect this right; and as the administration of justice necessarily requires, that every definitive sentence, regularly pronounced, be esteemed just, and executed as such; when once a cause in which foreigners are interested, has been decided in form, the sovereign of the defendants ought not to listen to their complaints; for to undertake to examine the justice of a definitive sentence, is an attack upon the jurisdiction of the sovereign who passed the sentence. (Vattel's Law of Nations, B. 2, Ch. 7, $ 84.)
This applies to proceedings in rem, as to movable property, situated within the jurisdiction of the tribunal in which they are instituted; as for example, proceedings in the admiralty courts, and those under the foreign attachment laws of the several states; which are sustained, in rem, when questioned in another state or country. (Bradstreet v. Neptune Insurance Company, 3 Sumner, 605 ; Starbuck v. Murray, 5 Wend. 148, 159; Story's Confl. of Laws, § 549.)
The principle is laid down in respect of foreign judgments in general, that to give them validity in other countries, the court pronouncing them must have had a lawful jurisdiction over the subject matter. And when this is applied to judgments which are purely in personam; it imports actual jurisdiction of the parties, by domicil, or by service of process or voluntary appearance. The case of Borden v. Fitch, 15 Johns. 121, 142, was of this character. The court in" Vermont had no jurisdiction of the subject matter. or of the defendant, and the decree was held to be void. The distinction was there recognized between such a proceeding and one in rem. The same observations apply to Bissell v. Briggs, 9 Mass. 462, 468. See also Bates v. Delavan, 3 Paige, 299, 305.
So it is said, that where there was no jurisdiction, the foreign judgment is void, whether it were in rem, or in personam, or against both; and the proper inquiry is, had the forum jurisdiction of the subject, and has it complied with the local law, so as to acquire it; because if the judgment were void there, it is void every where.
There has been much conflict in the decisions of the courts in the different states, as well as in England, as to the force of a foreign judgment, in personam, when brought directly in question in another country ; especially when it is made the foundation of a suit or proceeding. When it is produced in defence, as exceptio rei judicata, it has usually been received as binding. In the former case, many enlightened judges have held that foreign judgments should have the same weight as those of their domestic tribunals; while others would give them merely the force of presumptive evidence. The jurists, in countries where the civil law prevails, have exhibited much less of international comity in this respect, than has been observed by the courts in England and the United States.
But in reference to judgments and decrees in rem, there is no conflict of law in civilized countries. The adjudications in this country and in England, are harmonious; and jurists on the continent of Europe, yield their full assent to the principles sustained by the courts where the common law prevails. (Grignon's Lessee v. Astor, 2 Howard's R. U. S. Supreme Court, 319, 338, and the cases there cited.)
In determining the force of a foreign judgment, in rem, the court where it is propounded may look into the power under which the- foreign tribunal acted, to see that it had jurisdiction of the subject matter. (Per Marshall, (Jh. J. in Rose v. Himely, 4 Cranch, 269, 270.)
And Mr. Justice Story, adds, (speaking of proceedings in rem against movables,) it must appear that there have been regular proceedings to found the judgment or decree; and that the parties in interest in rem, have had notice, or an opportunity to appear and defend their interests, before it was pronounced. (Story's Confl. ofL. §592.)
What the notice shall be, or what opportunity shall be given to appear, in such a case ; is regulated wholly by the local law where the proceeding takes place, as will be presently shown. If that law be pursued, the requirement of notice to the party is fulfilled. The sufficiency of the notice or opportunity, is not open to examination in the court where the foreign judgment in rem, is produced. (See 3 Burge's Comm. 1054.) A familiar illustration of this, may be seen in our attachments against non-resident debtors, upon which the notice to the parties in interest in the property attached, who may be residing in Calcutta or Canton, is by law published in two or three newspapers in this state. The notice may never reach the parties, and they may in fact have no opportunity to defend; but the proceeding is conclusive in rem, here and every where.
The foreign court must have jurisdiction of the subject matter; and how is this conferred, assuming that the court has general jurisdiction in the country where the property is situated?
Here it is to be borne in mind, that the effect of a judgment in rem, is wholly distinct from its effect against the person of the defendant. It may be entirely conclusive as to the former, and yet be inefficacious for any purpose, in personam, either in a foreign tribunal, or in the country where it is recovered. Thus, in the every day's occurrence, of the foreclosure of mortgages in this court, against a mortgagor who is personally liable for the debt, and by reason of his absence from the state, is not served with process. The decree is made on the publication of notice; and in respect of the mortgaged premises, is binding and conclusive. So far, it is in rem. But if in the same decree, the mortgagee should insert a clause that the mortgagor must pay the deficiency of the debt, if any there should be, after a sale, and awarding execution against him therefor; such clause would be purely, in personam, and of no avail or force, even in the court where the decree was entered.
In order to acquire jurisdiction of the subject matter, in rem, it is not necessary that the court shall bring the parties within reach of its process.
Where the subject matter of the suit, the Res, is within the territorial dominion of the sovereign power under the authority of which the court acts, it is within the jurisdiction of such court. The presence or the domicil of the parties proceeded against, has no importance in such case, in determining the question of jurisdiction. They would on the other hand, be all important if the proceeding were purely in personam.
Mr. Burge says, jurisdiction is founded, either in respect of the defendant's domicil iti the territory of the tribunal, ratione domicilii; or in respect of his being possessed of some estate or subject within it, ratione rei sitae; or on arrestment of his movables there, (3 Comm. on Col. and For. Laws, 1016, 1017.) And this jurisdiction, ratione rei sitae, is fully recognized and applied in the law of Scotland. (Erskine's Institute, B. 1, T. 2, § 17, 18. Ferrie v. Woodward, 9 Cases in Court of Session, by Shaw, (fee. 854.)
Having jurisdiction of the subject matter, in rem, the local regulations and laws of the country in which the court proceeds, as I have already remarked, must determine what service of process, or what form of notice, shall suffice, to give to the defenders an opportunity of being heard in their defence.
Chief Justice Marshall says, in his admirable judgment in the case of Rose v. Himeley, (4 Cranch, 241, 268, &c.) " of its own jurisdiction, so far as depends on municipal rules, the court of the foreign nation must judge, and its decision must be respected." And Mr. Burge, after observing that the vocatio in jus, the citation of the defender, is essential; well says, that when the tribunal acquires jurisdiction, ratione rei sitae, this citation is necessarily a mere formal act. And he subsequently adds, that personal citation in such case is not necessary. (b Comm. on Col. and For. Laws, 1018, 1056, 7. See also Bradstreet v. Neptune Insurance Company, 3 Sumner, 606 to 609, per Story, J.)
Therefore when a foreign judgment or decree, in rem, comes in question here; the inquiry is not, was the defender therein served with process, or did he appear in the suit, as it would be if the foreign proceeding had been to establish a personal demand against him; but the question is, did the forum rei sitae proceed according to its own municipal laws, in pronouncing such judgment or decree.
In effect, we should treat the judgment of a foreign court,acting in rem, within its appropriate power and jurisdiction, with the same respect, and concede to it the same consequence, that we would to similar judgments of the courts of our sister states. We should allow the party contesting its validity, to show that it was procured by fraud, or that it is void on its face, or void by the local law, fori rei judicalae. But such party cannot be permitted to show that he never had any notice of the suit, otherwise than by showing that the notice prescribed by the local law was not given; thereby proving the judgment to be void by that law. Actual notice, in suits in rem, is not required to be given to absentees, in any system of municipal law with which I am acquainted.
Nor can the party be allowed to show that there are errors of law on the face of the judgment; for that would compel our courts to sit in review on the adjudications of the foreign tribunal. When the foreign judgment produced in evidence, appears to be regular in form, and to contain the essential parts of an adjudication of the controversy made between proper parties; the burthen of showing its invalidity rests upon the party who desires to impeach it. This principle applies also to foreign judgments in personam, where the latitude of impeachment is much more extensive than it is in the instance of judgments, in rem.(a)
The application of these observations to the case before me, is free from difficulty. The record produced shows a case of multiple-poinding and exoneration, in the court of session of Scotland, in which the trustees under Sir William Douglas's trust disposition and settlement or testament, interpleaded, (to recur to our own law terms,) all the other parties interested in his estate; in order to have their rights ascertained, their conflicting claims settled, and the way paved for the safe discharge of the trustees from their trust. The summons, issued October,
(a) As to what is necessary in a plea denying the validity of a foreign judgment in personam, see the recent cases of Cowan v. Braidioood, 1 Mann. & Gr. 882; Ferguson v. Mahon, 11 Ad. & Ell. 179 ; lltynoldi v. Fenton, 3 Mann. Gr. St, Scott, 187.

7th, 1813, sets forth the trust disposition, and the various claims, among which is the identical question now raised, upon the construction of the same instrument; and the four younger children of George Douglas, Jr. are therein described as residing in New York. The return of the messenger at arms follows, showing thnt he had twice summoned with many formalities, as being forth of Scotland, the four younger children, (naming them,) and their tutors and curators, if any they had, at the market cross of Edinburgh and the pier and the shore of Leith. A second return is made, showing a personal service on the now defendant George Douglas, upon the 10th December, 1S13. His claim as heir, to the heritable estate, and a claim of the four others to the whole movable property, are then entered. An interlocutory decree, dated January 19, 1814, appears to have preceded these claims in point of time, by which the court held the proceeding to have been properly instituted, and directed the defenders to produce their claims within ten days. On the 12th of February, 1814, the cause was called, and the Lord Ordinary again directed the claims to be produced, and the parties procurators to debate thereon at the next calling. On the 24th February, 1814, the Lord Ordinary made his decree, which recites that he had heard the parties procurators. And this decree appears to have been signed by him on the 1st of March, 1814.
It is not denied that the proceeding appears to have been regular in point of form. And the respect which is due to the judgment of the court, requires that we should presume all that appears in the record preliminary to that act, to have been rightfully and properly done, according to the local laws and regulations of the country. It is therefore to be taken, that the court of session may by the law of Scotland proceed in rem, against persons resident out of that realm; and that the established form of notice to such persons, is that pursued with the summons in this instance. There being no effort to prove the contrary, no proof in support of the record was necessary. I will refer as illustrating the point, to 1 Bell's Comm. on the Laws of Scotland, 496, where edictal citation is said to be, where the party cited, though amenable to the courts of Scotland, is out of that country, and it is made by proclamation at the market cross of Edinburgh and the pier and shore of Leith. This form was abolished, and a more reasonable notice for absentees provided in its stead, by the act 6 Geo. 4, ch. 120.
In the edictal citation, the defender though under age, was to be cited on the summons as a party to the suit, and his tutors and curators were also to be made parties; not by their names, because the pursuer might have no means of knowing who or where they are, or where they can be found. And such citations were used, where the minor had no tutors or curators. (Erskine's Institute, 13. 4, Tit. I, § 8.)
Bringing this record to the test of the principles previously advanced, there can be no possible doubt of the jurisdiction of the court of session over the subject matter of the decree in question. The property involved, was immovable property, land, situate in Scotland. The questions of title arose under a deed of trust or "disposition and settlement," made in pursuance of the laws of that country and peculiar to those laws, by a native of the country who was domiciled there at the time of his death. The trustees were residents of Scotland, the one temporarily, and the other permanently. The whole subject was emphatically Scotch, and more appropriate to the tribunals of Scotland, than it could be to those of any other country.
The jurisdiction of the parties, wherever they were, was incident to the locum rei sitae; and on pursuing the prescribed forms of summons, service and proclamation, the right of the court to proceed and decide upon all the questions involved in the heritable estate, was perfect and complete.
Whether the subsequent proceeding was perfect or was void, is a distinct proposition. I am now showing that the circumstance of the four younger children being residents of a far distant country, and utterly ignorant of the suit in point of fact, in no degree militates against the regularity of the proceeding, the jurisdiction of the court, or the conclusive effect of the decree. Much stress was laid upon that circumstance, together with the tender years of the parties, the relations then existing between our nation and Great Britain, and the entire suspension of intercourse between the two countries, flagrante bello. These facts would go far to excite sympathy, were it shown that injustice ensued; but neither hardship nor sympathy ought to bend great principles of law. It does not appear that the laws of Scotland provide any different summons or proclamation for an absentee who is an infant, or on the opposite side of the globe, or in a country at war with Great Britain and by her fleets embargoed from any intercourse with other nations; from those which must be pursued to summon an adult living on the southern bank of the Tweed. Those laws exclusively, control the mode of procedure in their own courts, and we have no right to judge of their wisdom or propriety.
The tmdtiple-poinding being strictly a suit in rem, the subject matter in Scotland, and the foreign parties interested, summoned according to her laws; I have no doubt that the court of session had ample jurisdiction over the estate and the parties, to decern as was done in this decree.
Analogous cases in our own courts, are not uncommon. A bill is filed in the court of chancery in this city, for the construction of a will devising lands situate here. Several of the defendants, who, upon one construction which is set up, have an estate in the lands, reside in Scotland. An order is made requiring them to appear, which is advertised in a newspaper published in this city, and another published in Albany. The Scotch parties hear nothing of the suit or the notice, and after an interval of six months, the bill is taken as confessed for default of their appearance, and the cdurt proceeds to a hearing of the cause, decides on the construction of the will and the rights of the parties, non-resident as well as resident, without hearing any argument in behalf of the former, and perhaps decrees that by the will properly construed, they took no estate or interest in the lands. We are familiar with such cases; and it would appear exceedingly strange to us, if a party in whose favor such a decree had passed, having sold the lands, and removed to Scotland, should there be sued in the court of session. by some of the defendants who had been advertised in the suit here as non-residents, and the claim seriously made, that the decree here was of no force beyond this state, that the construction of the will was still open as to those parties, and that the court of session was bound to decide upon it as res Integra. Yet it would be precisely like this case, with the single exception of the question arising upon the infancy of the two youngest children. A rule of law, which in either country would permit such a disregard of the judgments of the legal tribunals in the other, would be intolerable, in this era of unexampled social and commercial intercourse between the people of this country and those of Great Britain.
It appearing that the court of session had jurisdiction of the cause, the parties, and the subject matter; what effect is to be given to its decree 1
The same undoubtedly, to which it is entitled in the courts of Scotland. (Smith v. Lewis, 3 Johns. R. 168, 9, per Kent, J.; 3 Burge's Comm. 1062, 3, and 1066, 7; Cottington's case, 2 Swanst. 326 to 330, note.) If valid there, it canuot be investigated here. If it were such a nullity by the laws there, that it would be unavailing when set up as res judicata, or as a defence; it would be equally inoperative here.
It is not proved what force a judgment in rem, against an absent defendant who is not personally notified, has according to the law of Scotland. In the absence of proof, it must be taken to have some force and efficacy; for this court has no right to presume that the Scottish courts go through the idle form of making decrees which are of no force at all by their own law. The least that can be presumed on the subject from general principles, is, that such a judgment is valid and binding on the parties, until it is opened, vacated, or set aside.
In a Louisiana case which was cited, (Psyche v. Paradol, 6 Louis. R. 366, 376, 7,) where the matter came up before the same court, a petition had been filed; and then without any process, notice, or publication, on the plaintiff's application, a curator ad hoc was appointed to represent the infant defendant. The court held it of no force, the judge putting it on the ground among others, that there was neither party, citation, nor conlestatio litis, in the case. The respect due to a foreign judgment, recovered in Scotland, was carried far beyond anything claimed jn behalf of this decree, in Douglas v. Forrest, (4 Bing. 686, 702.) And see a similar case, Becquet v. McCarthy, (2 B. <fc Ad. 951.)
The law of Scotland, being matter of proof in the cause, I cannot act in my decision, upon the information which I may have obtained in regard to that law from other sources. But I have in this, and some other instances, resorted to such Scottish law books as were accessible, and appeared to be works of authority, in order to satisfy myself whether any further testimony of that law, would elucidate the case, or present it in a different aspect.
Professor Erskine gives to decrees in absence, full effect and validity, until the defender appears and challenges the same. (Erskine's Institute of the Law of Scotland, B. 4, Tit. 3, $ 6. And see Grant v. Pedie, 1 Wils. &, Shaw's Appeal Cases, 720, per Lord Eldon; and Brown v. Sinclair, 2 Shaw & McLean, 140, per Lord Brougham.)
Before referring to the mode of challenge which is permitted, it should be mentioned, that it is not merely judgments or sentences against non-residents and persons never personally cited, which constitute decrees in absence. Where the defender is personally cited, but chooses not to appear, the only decree which the pursuer can obtain on his default, is a decree in absence. And such decrees may, in general, be opened up and the merits contested by the defender, whether he were a minor or an adult, within forty years after they are pronounced.
Hence, if it be proper in any country, that decrees presumptively valid, should be reviewed and set aside, in the court which pronounced them; it is emphatically just and proper, in respect of decrees in absence obtained in Scotland. The process or action there resorted to for this purpose, is called "Reduction;" and it is defined as "a rescissory action peculiar to the court of session, whereby deeds, decrees, &c., may be rendered void." (2 Bell's Law Dictionary, 389; Ersk. Inst. B. 4, tit. 1, § 24, and tit. 3, § 8.)
Mr. Burge says, "Suspension and reduction, are the remedies by which the law of Scotland relieves parties from the effect of such decrees of the court of session as are given to their prejudice, or which can be again brought under their own review on account of any substantial defect." (3 Burge's Comm. 1024.)
Several illustrations of the mode and limit of enforcing this remedy, will be noticed in another place. I will refer also, to the citations in Brown v. Sinclair, (2 Shaw & McLean's Appeal Cases, 121, 123, 124, 140, et seq.)
It should be observed, that where a judicial sale is founded on a decree in absence, on opening it up and reducing it, the sale is unaffected. The defender's remedy is against the parties who have received the benefit of the sale. (2 Bell's Com. 279.)
Besides the principle that a decree in absence in rem, can only be reduced in the court where it was rendered ; the defendant may repose himself in this case, upon the important distinction between an action brought to enforce a foreign judgment, and the plea of a foreign judgment opposed to a suit instituted for the purpose of destroying its effect, or of establishing a right inconsistent with that conferred by it. In the latter case, the exceptio rei judicatae, the party asks merely that the court will not interpose, because the sentence can be reviewed only by appeal. (3 Burge's Comm. 1058, 9.)
This distinction, well known in the law of Scotland, (Ersk. Inst. B. 4, tit. 3, § 4:) is also recognized and established in the common law. (Philips v. Hunter, 2 H. Blackstone, 402, 410, 414; Smith v. Lewis, 3 Johns. 168, 9; 2 Kent's Comm. 120, 2d ed.) Where the foreign judgment was in rem, the occasion for urging its validity must necessarily be by way of defence, almost invariably; thus falling within the strong position of the exceptio rei judicatae.
So in this instance, the defendant asks no aid or interposition from the courts of this state. He insists, that the complainants remedy (if any they have) against the decree in question, regarded as a decree in absence, is confined to a suit or application for its revision and correction in the court of session in Scotland; to an action of reduction of the decree.
This is not only conformable to the law applicable to such judgments, but in my opinion, it is peculiarly appropriate to a foreign decree like this, involving the construction of a will executed in the country where it was pronounced; and governed by the laws of that country.
A distinct objection to the validity of the decree, is presented on the ground that the record shows an appearance to have been entered in the suit in behalf of Mrs. Monroe, when, in fact, there was no authority from her or her guardians for any person to appear or to represent her in tbe proceedings.
As to this, no appearance at all being requisite, it would seem that the decree can be no less valid for the reason that the defenders, who were forth of Scotland, appeared and were represented by eminent counsel. I speak now of the point, irrespective of the question of Mrs. Monroe's minority. A decree, (aside from that question,) would have been valid, without any appearance, and an unauthorized appearance would make it no worse.
It may be said, however, that the counsel who appeared, conceded away her rights. It is true, her claim appears to yield the point as to the heritable estate; but the record shows, that the judgment of the court was actually exercised on the question. Whether there was a prior claim asserting her right to the heritable estate, and after debate thereon and the decision of the judge, a new claim in her behalf was then exhibited conformable thereto, and the latter inserted in the record, as was ingeniously suggested by the defendant's counsel; or whether the advocate, acting on his best judgment of the law or of the interest of his client, preferred her claim in the form now appearing in the record; it is impossible for me to say upon the testimony, or from any information I can obtain respecting the practice of the court of session. The summons or process of multiple-poinding, stated correctly the conflicting claims of the children of George Douglas Jr. to the heritable estate; and these alone appear to have been the foundation of the suit. It seems from Mr. Young's account rendered to Mr. Hannay, that there was an actual calling and debate of the cause, and an actual judgment of the Lord Ordinary, Gillies, on the question. And the same account shows that the claim was revised and altered according to the suggestions of the counsel, the charge for which is entered as if it had occurred after the entry of Lord Gillies' decision.
But waiving the point on the importance of the appearance; is it proved that there was no authority for Mr. Young to represent Mrs. Monroe as mandatory, or for Mr. Wood to act as her advocate, on the construction of the disposition and settlement? "Whether their appearance was in the proper form, is a question entirely distinct from this.
In the first place, where the record states that the party appeared by attorney, (or by the proper officer for that purpose,) the authority of the attorney will be presumed. (Shumway v. Stillman, 6 Wend. 447; Harrodv. Barretto, 1 Hall's Rep. 155; Voorhees v. Bank of the United States, 10 Peters, 449; Tipton v. May field's Curator, 10 Louis. R. 189.)
(It seems that in Scotland, where counsel are entered as being present, the court will not treat a decree as made in absence, or otherwise than inforo. Kerr, petitioner, 4 Deas & Anderson 185.)
The importance of this rule, is obvious from the practice in our own courts. Our records seldom show the authority under which solicitors and attorneys appear to prosecute and defend suits. Probably in this case. the mandatory appeared in the mode accustomed in the court of session, and there as well as here, the court has no record of his authority, other than the record of his official capacity as a writer to the signet, or as an attorney or solicitor. If after the lapse of thirty years, one relying on a decree of this court, should be called upon to prove that the solicitors who appeared in the suit, were authorized so to do by their clients; not one decree in a hundred could stand under the ordeal.
In this instance, the rule acquires additional force and importance, from the circumstances under which it is invoked. The suit occurred in a distant foreign tribunal. The actors in it are all dead. The bill was not filed till twenty-eight years after the decree was made, and no intermediate step has been taken to open, vacate or set aside the decree; although its existence and effect were known to Mrs. Monroe's guardians within a year or two after its entry, and must have been known to her when she
became of age and competent to act for herself, about eight years after such entry.
Not only is the burthen of disproving the authority, upon the complainants, but very clear and stringent proof to that effect, is indispensable, to overcome the presumption of authority arising from the record itself, fortified as it is by such circumstances. (See Bradstreet v. Neptune Insurance Company, 3 Sumner, 604, per Story, J.)
The testimony introduced to disprove Mr. Young's authority, consists of Mr. Crnger's fruitless search for a power or letter of attorney; his testimony and that of Mr. Anderson, as to various declarations and writings of Mr. Young and others; and the correspondence between Mrs. Margaret Douglas, the mother and one of the guardians of Mrs. Monroe, and Samuel Douglas, one of the trustees in the Disposition and Settlement.
Of the declarations and writings proved by Messrs. Cruger & Anderson, they are not legitimate testimony, beyond the accounts made out by Mr. Young; and the latter are consistent with an authority either to Mr. Hannay or Samuel Douglas.
The search was made in the Register's office in Edinburgh, where powers of attorney respecting lands are recorded; and Mr. Cruger also inquired for the power, of Mr. Young's partners, he being absent at the time. Judging from analogy to our usages, and its intrinsic propriety, such a letter of attorney, being purely ad litem, would be found either among the attorney's papers, or on the files of the court of session. No search was made among those files, nor among the papers of Samuel Douglas or Mr. Hannay, and the search in Mr. Young's papers, was not so thorough, by reason of his absence, as to be safely relied on. Then in regard to the correspondence. It is not certain that all of it is produced. The letters which are in evidence, certainly raise a strong inference against the idea that any authority was transmitted from this country, to appear in the suit, or in any suit, respecting the inheritance.
On the other hand, the correspondence shows that the question between the defendant and his brother and sisters, was distinctly exhibited to Mrs. Douglas in 1810 and 1811. The opinion of three eminent lawyers on the point, was transmitted to her. The necessity of a suit in Scotland, to determine the question, was made known to her, and the opinion declared the necessity of her childrens being represented, and of suitable powers of attorney being sent for that purpose. All this was before the war broke off the direct intercourse between the two countries. It also appears, that Mr. Young, who did appear in the suit, was a writer to the signet, of high character and respectability; the standing of the advocates who appeared and advised for Mrs. Monroe, is sufficiently shown by the fact, that two of them subsequently became judges of the court; and two of them were signers of the opinion given in February, 1810, which pointed out the necessity of the power of attorney. All of them are also shown to have been gentlemen of eminence in their profession, and one, Lord Jeffery, is well known both as a man of letters and a judge, on this side of the Atlantic.
Connecting with these considerations, the great lapse of time during which the decree was fully known, they appear to me to be quite sufficient to repel the inference derived from the letters and the other testimony to which I have alluded; and the presumption of authority arising from the record itself, remains in full force.
If it be said that the infancy of some of the parties, precludes the inference of any power of attorney or proper authority; I can only answer that the law of Scotland on that subject is not proved. I suppose it is not unlike the common law in that respect; but I am not judicially informed. An officer of the court appeared in the suit, and there is no proof that the guardians of absent infants could not give him sufficient authority; or that the court does not appoint a mandatory on an edictal citation.
I must consider the objection founded upon the alleged want of authority to appear for the infant defendant, as detracting nothing from the force of the decree of the court of session made in 1814.
There is still another, and a very serious objection brought against that decree, independent of the absence of the parties, and the alleged unauthorized appearance; and which, it is insisted, rendered the decree absolutely void against Mrs. Monroe in Scotland, and a*fortiori, in every other country. She teas an infant, and the record of the decree shows that she was represented in the suit by a mandatory; and it does not show that she had any tutor or curator ad Ikes, which the Scottish law required.
One answer to this objection is, that the alleged rule of law is as much a fact to h- averred and proved, as the manner of the appearance itself; and there is no averment of the kind in the bill, and no issue to which the evidence in support of the objection is pertinent.
The bill is silent on this point, and it reposes its claim to avoid the decree, upon the entire want of authority for the appearance made in behalf of Mrs. Monroe in the suit. But I will, for the present, pass by this answer to the objection.
By the record of the decree, it appears that Mrs. Monroe put in her claim in the suit, by Alexander Young, writer to the signet, her mandatory; and the claim appears to have been signed by "A. Wood." Mr. Wood, it seems, was an advocate, (or counsellor at law, as it would be termed in this state;) and Mrs. Monroe was at that time between twelve and thirteen years of age.
To prove the law of Scotland on the subject, the complainants examined as witnesses, two writers to the signet in Edinburgh, Messrs. John and Francis Anderson. The interrogatory put to the witnesses was this: "Is any authority necessary to bind minors in legal proceedings? If yea, what authority. and from whom must it come?" Their answer was: "The question is one of law, and more adapted for the opinion of counsel. As it has been put, however, he saith that he considers the concurrence of a guardian or curator necessary to bind a minor in legal proceedings."
The cross interrogatory called on the witnesses to point out their authority by law books, specifying the pages particularly. In their answer to this, the witnesses refer to a passage from Erskine's Institute, which they quote at large from book 1st, title 7th, and section 13. The quotation is as follows: "Minor is either pursuer or defender; in any action, he must have a curator to support him in his prosecution or defence, under whose authority the suit may be managed on his part; for sententia contra minorem indefeiisum lata nulla est; whether, therefore, the minor be engaged in a law suit with liis curators, or having no curators, with a stranger, a curator ad lites must be given him by the judge, even though the nomination should be demanded from him, not by the minor himself, but by the adverse party; for every litigant has an interest that the proceedings in any cause in which he hath a concern, be regular. And if such curator be not demanded by either party, the judge ought to appoint one ex officio."
This is all the proof on the subject. I confess it does not relieve the complainants' case, even with the aid of the treatise cited.
To render a foreign judgment void, on the ground that it is contrary to the law of the country where it was given, the proof that it is so, must be clear and unequivocal. (Bccquet V. MacCarthy, 2 Barn. & Ad. 951; Voorhees v. Bank of the United States, 10 Peters, 449.)
According to our law, an infant cannot appear in a suit by attorney or solicitor. If he prosecute a suit, it must be by his next friend: if he defend one, he must be represented by a guardian ad litem. Nothing is more clearly settled and understood; and doubtless most of our attorneys and solicitors, and many of our counsellors, if examined as witnesses on the subject, would testify, that a judgment or decree entered against an infant, who appeared by his attorney or solicitor, instead of his guardian ad litem. was void; or in the language quoted from Erskine, i: nulla est." Their meaning would be, and such is our law, that such a judgment or decree is erroneous, and the infant may reverse or avoid it. It is of no avail against him, if he choose to set it aside. Not that it is absolutely void, or a mere nullity. On the contrary, until reversed or set aside by the infant, in a proceeding directly upon the judgment or decree, it is valid and effectual. No person except the infant, can even allege its invalidity; and he can attack it only in the court where it was recovered, or on an appeal or writ of error, reviewing it in a higher court. He can never question it collaterally, and after he has been of full age two years, he can neither reverse it nor move to set it aside. See an authority for this, in a case arising under a law of Maryland, in the supreme court of the United States, Thompson v. Tolmic, 2 Peters, 157, 163.
In this instance, the modest answer of the two Edinburgh solicitors, aside from Erskine, does not lead to any conclusion that by the law of Scotland, a decree taken against an infant, appearing hy n mandatory instead of a curator, is absolutely void. The quotation says, a judgment against an infant undefended, nulla est, literally, is nothing. So one of our solicitors, if he quoted Blackstone's Commentaries, might say, "an infant can neither alien his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract that will bind him." And a French lawyer, relying upon such a quotation, would obtain a very mistaken view of our law, as to the acts and disabilities of infants.
Again, in respect of Erskine, the maxim does not apply literally to an infant defended by a mandatory; it is the decree against an infant not defended at all, which nulla est. The great defect in the evidence is, that it does not inform the court, what effect or consequence the law of Scotland attaches to the faulty or irregular appearance of an infant in legal proceedings. This very case, for example, might have been presented to the witnesses, and their testimony taken upon the point. A proper inquiry would have been, "when the court of session proceeds hy edictal citation, against a minor residing in a foreign country, is it necessary that any appearance be made for the minor, before a decree in absence can be entered against such infant?" If the answer declared that a curator ad litem must first be appointed, another inquiry would be, "if, after a proper citation, a decree should pass against a minor on an appearance by a mandatory, or without any appearance at all, would it be as valid as decrees in absence against adults, or would it be voidable for that cause also, or would it be absolutely void, and of no force whatever?"
As the testimony stands, I am wholly unable to decide whether this decree was as valid by the mandatory's appearance. as it would have been by a curator's; or was voidable, at the instance of the infant, for the defect in the appearance, or whether it was purely void.
A nullity never can be waived. An irregularity can be. Therefore, any defect which the party can waivers of the class which makes the proceeding irregular, and not null. Let me suppose, in this case, that the one-third of castle Douglas, had turned out to be worth, in 1815, only as many dollars as it sold for in pounds sterling; that the Galloway Bank had wound up prosperously, and Mr. Anderson, of Fermoy, had paid his debt in full. And farther, that the defendant. after his right to collate under the decree had lapsed by time, on finding that he was a pecuniary loser by being made sole heir to the heritable, and excluded from the movable estate, had brought a suit against his brother and sisters, claiming his share of the latter property, on the ground that the decree was null and void, by reason of their not having been cited personally, or because they did not appear in the proceeding by a curator ad litem 7 What would have been the answer of the brother and sisters to such a claim 1 Unquestionably, they would have said, "true, our appearance in the multiple-poinding was irregalar; it was erroneous, and we could have set it aside, and opened the decree; or by a reduction of the decree, it might have been vacated. But that was our privilege, and at our election. You had no such right; and we preferred to suffer the decree to stand. It was always binding upon you; it is now binding upon us."
Thus, in my judgment, the proofs fail to show that by the law of Scotland the decree of 1814 was void as against Mrs. Monroe, because of the appearance in her behalf by the mandatory.
Recurring to the Scottish treatises and adjudications, of which Erskine's Institute as to this point, may be regarded as testimony, I find my doubts as to the nullity of the decree entirely removed; and that it stands on the same footing as to the infants, that a similar judgment does at common law.
But first, it is at least doubtful, so far as I could ascertain with the limited means of information at my command, whether in a proceeding in the court of session, by edictal citation against a minor who is forth of Scotland, it is necessary that there should be, either a tutor, curator or mandatory appointed, for the minor, or any proceeding had analogous to our appearance.
Thus it was held in Calderhead's Trustees v. Marshall, (10 Shaw, Dunlop & Bell's Cases, 582; S. C. 5 Deas & Anderson's Rep. 316, May 26, 1832,) that it was not competent to appoint a tutor ad litem to a minor who had made no appearance in the action. The Lord Ordinary in his opinion, said that " by the law of Scotland, a pursuer cannot compel a party to appear injudicio, and if a defender is not in court, all that can be done is to take a decree in absence." The Judge cannot appoint a curator for an absent defender. If a pupil is brought into court by his natural guardian, then the court, suo motu, or on application of the opposite party, may appoint a curator ad litem. And the consent of the natural guardian is not necessary for such appointment. The counsel who desired the court to appoint a curator in that case, cited the section of Erskine from which the Messrs. Anderson's quoted in their testimony. The Lord Ordinary referred to the case of Stark v. Sinclair, hereafter cited; and 1 Bell's Law Dictionary, 340, 349, to the same effect. From the report in 5 Deas & A. 316, it is inferible that the minor had been personally cited, but had never appeared in court personally, or by his relatives or natural guardian.
So long as a decree in absence is wholly ex parte.. and is open to reduction both by adults and infants against whom it is recovered, upon the mere suggestion of its character; to what end or purpose should the court nominate a tutor for a minor defendant?
But assuming that the practice in Scotland, like that here, requires a proper person to be appointed for the infant's protection, before proceeding to a decree against him as an absentee, and that such person is to be a tutor or curator, what is the effects of its omission? First however as to the nature of that office. In Scotland, males under 14 and females under 12, are called pupils, and from thence till of full age they are minors; but these words are often used without discrimination for what we call infants, or all persons under 21 years of age. Macallan says, when a pupil becomes a pursuer or defender of a process, a tutor ad litem must be appointed: The summons or defence for the pupil, must first be iu court. (Practical Digest of the Law of Scotland, 6. And see 2 Bell's Law Diet. 230, 232, 375 and ibid, title " Curatory.") For minors not under pupillage, a curator ad litem, is appointed for the same ends. Mrs. Monroe iu 1813, 14, was a minor, and her proper representative ad litem, would have been a curator.
Mr. Bell says, that the law of Scotland requires that a curator for the minor should be made a party to judicial proceedings in which he is interested. Where the minor already has curators, they are to be cited with him. Where he has no tutors or curators, tutors and curators must be cited edictally, and when appearance is made for the minor, a curator ad litem must be appointed for him; and if this be omitted, any decree inforo against him will be reducible on that ground. The appointment is made on motion of either party, by the judge before whom the process depends. (1 Bell's Law Dict. 340, 349, title, Curatory.)
I may add, that the guardians appointed in New York, had no authority or control over the immovable estate of the infants in Scotland. (2 Kaims' Eq. B. 3, ch. 8, $ 1.) So far as they may be deemed curators, they were edictally summoned in the first process.
A curator ad litem should have been nominated, before further proceeding. Instead of which a Writer to the Signet, as her mandatory, appeared for the minor, in the suit. A mandatory, in the Scottish law, is equivalent to a general agent, in our law, and is not an attorney or solicitor; (Erskine, B. 3, tit. 3, § 31 to 42; 2 Bell's Law Dict. 208 ;) and in the civil law, where he is employed to institute or conduct a suit, he is designated as a procurator ad lites. (3 Burge's Comm. 984.) If a curator had been moved for in the suit, a Writer to the Signet would have been appointed. In fact, a W. S. appeared and acted, not as a curator, but as a mandatory or procurator.
Now what was the consequence of this appearance, in form so improper? If the appearance had been in the correct form, (there being no actual defect of authority shown,) the decree would have been inforo, as it is expressed iu Scotland, and not xxxou the footing of a decree in absence. It would therefore have fallen within the " Quadrennium Utile?' of the Scotch law, which is the privilege that minors have of being restored against judicial acts, and which may be exercised within four years after they arrive at majority. But within tho four years, they must raise and execute the action of Reduction against such judicial acts. (2 Bell's Law Dict. 230, 231, 376.) So that if Mr. Young, in this record had been described as curator ad litem, instead of mandatory, Mrs. Monroe's remedy in Scotland would have been barred in 1S26.
As the record actually is, the decree was irregular and erroneous; and was, (and as a decree in absence I suppose still is,) liable to an action of suspension and reduction in the court of session. But until reduced, it is valid in Scotland, and not subject to be attacked there or elsewhere, collaterally, as is attempted to be done in this suit. Thus, Mr. Bell says in the paragraph already quoted, a decree against a minor, for whom no curator has been appointed, is reducible on that ground.
In Sinclair v. Stark, (6 Cases in the Court of Session, by Shaw & Dunlop, 336; January 15th, 1828,) a decree had been obtained against a pupil, without any appearance having been made for him, or any tutor ad litem appointed. The summons had been regularly entered against him personally with edictal citation against tutors and curators. It was contended that the decree was null and void; but after full consideration, the court held, ten judges against four, that the decree was not void, but merely subject to be opened up as a decree in absence. (See also, the case of Dick, May 15, 1828, 6 Shaw <k Dunlop, Cases in C. of S., 798.) In 7 ibid. 364, in the case of Dick, Feb. 5, 1829, it was held, that a decree against a pupil undefended, was null, and that he was entitled to be reponed and restored against it, in integrum.
The difference between reponing a decree, and having it recalled or reduced, appears to be, that on reponing, the pursuer in the original process, must show that the decree was well founded; but when it is not reponed, the defender must show that the decree was ill founded. In both instances, the proceeding to effect the object is the same, by a libel or claim founded upon the original suit, and seeking to invalidate its- effect.
I have been unable to examine at large, the report of this case of Dick, in 7 Shaw & Dunlop, and being ignorant of its particular circumstances, I cannot judge how far it is inconsistent with the decision m Sinclair v. Stark, the year before. It may have been made by a different judge, in a different division of the court. It certainly appears to hold a doctrine in accordance with the complainant's case; but it is not in that respect, reconcilable with the earlier or the subsequent adjudications.
I find that in the case of Sinclair v. Brown, presently mentioned, the Lord Ordinary in his judgment, in 1834, (see it in the report of the appeal, 2 Shaw & McLean, 109,) stated the case of Sinclair v. Stark, above cited, as being settled law; and the subsequent decisions in Sinclair v. Brown, both in the First Division, and before all the judges, appear fully to sustain the doctrine of that case.
Deviating a little from the chronological order of the authorities, I will here notice the case of Si?iclair v. Brown, which is to be found in the Cases in the Court of Session, 13 Shaw, Dunlop, Bell & Murray, 594, and again in 15 Dunlop, Bell & Murray, 770; also, in 2 Shaw & McLean's Appeal Cases, 103. A decree rescinding a disposition and sasine, and settling a heritable right, was taken in 1786, and followed in 1788 by a decree of reduction-improbation, in favor of the same parties; both being taken as decrees in absence, against an undefended pupil. In 1832, after the lapse of more than forty years, in which time there had been various sales of the estates, (but there had also been successive minorities,) the representatives of the pupil raised a reduction of those decrees, and of all the subsequent conveyances. The decrees, and the lapse of time, the sales and the conveyances, with other circumstances, were pleaded in answer to the reduction, and for the purpose of excluding it. The Lord Ordinary, May 13, 1834, held the defence to be valid. The pursuers of the reduction, reclaimed to the Lords of the First Division of the Court of Session, who on the 3d March, 1835, recalled the previous decision, and held, amongst other things, (all the judges concurring,) that the decrees of 1786 and 1788, being led in absence against an undefended pupil, it was competent to open them up within the long prescription, and that minority was not to be deducted in computing the prescription. They opened the decree of reductionimprobation (which has peculiar sanctity in Scotland,) because, it was in absence against a pupil, no defences were lodged, uo discussion took place, and no further compearance was made; but they add a querc, whether such a decree regularly obtained in absence against a person of full age, is liable to be opened up. Froq| this interlocutor, Brown and others appealed to the House of Lords, and on ihe 17th July, 1835, that court remitted the case to the court of session, with instructions to have the matters of law argued before all the judges of that court, including the Lords Ordinary; and two questions were presented for their consideration; the first, on the general effects of decrees in absence, and whether the right to reduce them might be affscted by laches, or other circumstances, short of the forty years; and secondly, whether the disabilities of parties by reason of minority or the like, were to be added to the time allowed for reduction by the forty years prescription. (2 Shaw & McLean, 147 to 153.)
The case was heard accordingly, and a decision made on the 9th of March, 1837, in which all the judges present (eleven in number) concurred, and the interlocutor entered was, that if the minorities should be'completely established, the pursuers cannot be held as barred from challenging the decrees of 1786 and 1788, as decrees in absence; and it then remitted the case to the Lord Ordinary to have it proceed. The whole court held, 1. That as the decree affected the title to a heritable estate, minorities were to be deducted in computing the years of prescription against the pursuers; and 2. That if, after deducting minorities, the long prescription had not run upon the decrees in absence, those decrees did not technically form a title to exclude; yet nevertheless, this did "not necessarily imply the instant recall of the decrees, or place the defenders in the same situation as if they had never been pronounced." But that lapse of time, combined with other circumstances, might form a plea of personal exception against the pursuers, or might "have a most important effect in determining that general question of which the pursuers necessarily undertook to make out the affirmative, viz: whether in the whole circumstances, the decree ought or ought not to be reduced."
The effect of this elaborate case, as I understand it, is that a decree in absence against a pupil or minor, for whom there was no tutor or curator appointed, is not null or void ; but is liable to reduction, at the suit of the minor or his representatives, within Jprty years after its entry, adding to the forty years the periods of minority. And that special circumstances may abridge the period within which reduction may be rightfully claimed, or bar it in a shorter time.
In Roberton v. Roberton, 9 Cases in the Court of Session, by Shaw, Dunlop, Bell, &c., 865; S. C. 4 Deas & Anderson, 244; July 2, 1831; a suit had been commenced in 1804, by children, (of whom the plaintiff, who was then a minor, was one,) against their uncle, in action of count and reckoning. The plaintiff had no curator ad lites, in that suit. There was a decree against the uncle, and the plaintiff received his share under it, pursuant to drafts drawn while he was a minor, but which were settled with his agent after he was of full age. After an interval of fifteen years, he brought an action in reduction of the decree, alleging errors, &c., in the accounts. The court of session held that the decree was homologated.
The rule of the Scotch law requiring curatores ad lites, applies as well to cases where minors are pursuers, as where they are defenders; and in the one last cited, the ground was, that the decree was void as to the minor pursuer in the first action. The court held otherwise, and that his subsequent action founded on the decree, made it conclusive upon him.
The long contested and very intricate case of Maule v. Maule, 4 Deas & Anderson, 252, shows that the omission to have a tutor ad lites, at the most, brings a decree which would otherwise put the minor to his Quadrennium Utile, to the level of a decree in absence, and subjects it to the action of reduction within the forty years.
Analogous in principle to these cases, is Craigie v. Scobie, 4 Deas & Anderson, 303. There a decree in absence had been obtained against a married woman, while she was under interdiction, (relative to which see 1 Bell's Comm. 139 to 141,) without making her interdictor a party. A new suit founded upon that decree, was brought against her, in which she pleaded that the decree was null for that cause. It was decided that the plea of nullity of the decree, could only be competently discussed in a process of reduction.
It may be seen by Mr. Burge's valuable work, that various nullities, as they are termed by the civil law lawyers, must be taken advantage of by an appeal, or similar direct proceeding, and may be cured by lapse of time.
The result of this examination is that the decree is not null and void for the error in the mode of appearance for the minor in the multiple-poinding ; "and that her remedy for the defect was by reduction of the decree in the conrt of session. The case heretofore cited, Voorheesv. The Bank of the United States, 10 Peters, 449, forcibly illustrates the principles of law applicable to the defects objected against this decree, ns well as the competent mode of taking advantage of the same. See also Thompson v. Tolmie, 2 ibid. 157,163; and Grignon's Lessee v. Astor, 2 Howard's U. S. Rep. 319, 340, &c.
The bill alleged that the decree reserved the rights of the defenders, as between themselves. I think its express terms show the contrary, and that it is a positive decree against the younger children, in favor of George Douglas, as to the entire third of the heritable estates. That such is the appropriate effect of a decree in multiple-poinding, see 2 BelVs Law Diet. 239, 240; Ersk. Inst. B. 4, Tit. 3, h 23.
One ground remains, upon which the decree was assailed at the hearing with much zeal and a powerful display of argument. I allude to the charge of fraud against the defendant, in respect of the decree, and the proceedings which led to it.
The only charge in the bill which approaches to an intimation of fraud is, that at the time the proceedings were commenced, and while the same were in progress, and when the decree was pronounced, the defendant was in Scotland, with the understanding that he should look to the interests of his younger brother and sisters, and should keep the family informed of every thing that transpired in relation thereto. And that Mrs. Monroe was then an infant of tender years, residing in the city of New York, where her guardians also resided. The bill avers that they were all wholly ignorant of the suit and proceedings, and in this connection, states that no process was served, and no notice given to her or her guardians.
Without stopping to criticise the meagre aspect of this allegation, as a ground work for so grave an accusation as was made at the hearing; I am perfectly satisfied that no man can read Mrs. Margaret Douglas's letters to Samuel Douglas, describing the habits and character of the defendant, and cautioning him against consulting her son or depending upon him, either in respect to his own interests or the interests of the rest of her family; without a perfect conviction that the charge in the bill, relative to his being intrusted with the interests of his brother and sisters, is utterly without foundation.
The multiple-poinding was doubtless the offspring of the trustees desire to settle the question of title, and to purchase the castle estate for the son of James Douglas; and the testimony in the cause has satisfied me that the defendant had no concern with its institution, or with its management in respect of the other parties in the proceeding.
The claim that the defendant was a trustee of the proceeds of the heritable estate for the other children, falls with the charge of fraud.
With a decree of a competent tribunal adjudging the estate to be his, and an uninterrupted claim of the whole as his own, exclusive of any other right, from the time of such decree to this day, there is no room for the doctrine of constructive trusts, as applicable to the property in question.
My conclusion on the points already examined, relieves me from looking into the defendant's strong ground of the " homologation" of the decree in question.
In my judgment, the decree itself is a bar to this suit; and the complainants remedy, (if any there be remaining to them at this day,) against the defects alleged in the decree, and the proceedings which led to it; is in the court of session in Scotland. The bill must be dismissed with costs.(a)
(a) The complainants appealed to the chancellor, and the decree was affirmed by the supreme court in equity, before Justices Jones, Hurlbut and Edmonds, Sept. 29th, 1849.