Hepburn of Kingston v Maclachlan.

Factual and Procedural Background

Following a rebellion, two individuals engaged in the conflict were sent to a county to levy a tax. They took approximately £700 Sterling from a local landowner. One of the individuals ensured the sum was counted before notaries and promised to send a bond from the claimant, styled as a prince, as a receipt and an order for payment contingent on the success of the cause. The executor of the landowner’s estate pursued restitution from the heir of one of the individuals involved in the levy.

The heir defended on the basis that penal actions arising from delicts cannot be insisted upon against heirs, arguing that the money was used for the cause and no personal enrichment occurred. The pursuer argued heirs are liable for reparation of damages even if the action is not penal, relying on civil law principles. The court ultimately found the defender liable for the principal sum, interest, and expenses.

Subsequently, the executor pursued adjudication of the heir’s estate based on a decree. The heir objected, contending the decree was extracted without proper confirmation of the sum. The pursuer produced a special assignation of the debt from the original landowner to support the claim. The court sustained the objection to the decree due to lack of confirmation but later repelled the heir’s defense, finding liability. However, the court superseded further advice on the title to the debt, which was eventually not sustained.

Legal Issues Presented

1. Whether penal actions arising from delicts can be enforced against heirs of the original wrongdoer.
2. Whether an action for restitution of money taken under circumstances of rebellion, but purportedly applied to the rebel cause, is penal or compensatory in nature.
3. The extent of liability of heirs for sums levied by their predecessors in the context of civil and penal law principles.
4. The validity and evidentiary weight of a special assignation of debt in establishing title for adjudication of an estate.

Arguments of the Parties

Defender's Arguments

• Penal actions arising from delicts cannot be insisted upon against heirs.
• The money was not taken for personal gain but applied to maintain the cause in which the original wrongdoers were engaged.
• Children should not be punished for their parents’ faults.
• Reliance on authorities like Grotius and civil law texts to argue non-liability of heirs in penal actions.
• The special assignation produced by the pursuer was not known to the defender and suggested the money was lent voluntarily under appearance of force.
• The assignation referenced a royal warrant and the titles assumed by the claimant, indicating a legitimate agreement rather than extortion.

Pursuer's Arguments

• The citation from Grotius does not apply to heirs’ liability for predecessors' debts seeking reparation.
• The action is compensatory, not penal, as it seeks reparation of damages.
• Under civil law, such actions are given against heirs even if the delict did not enrich them.
• References to civil law doctrines such as condictio furtiva and actions for wrongous intromission support liability.
• The assignation is not evidence of consent but a legal instrument to pursue restitution from the rebel party.
• Proof of force in taking the money is clear; the original landowner expected repayment from the exchequer, not voluntary lending.
• Actions for wrongous intromission are generally against intromitters in solidum, including heirs.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lady Ormiston v. Hamilton (17 January 1711)	Heirs are not liable for penal actions arising from delicts of predecessors.	Referenced to support the defender’s argument on non-liability of heirs in penal actions.
Strachan v. Morison (17 January 1668)	Actions for wrongous intromission against several intromitters are not in solidum but pro rata.	Applied to argue that liability among multiple intromitters, including heirs, is proportional.
Grotius, l. 2. tit. 21. § 13, 19, 20	Principles on heirs not being punished for predecessors’ faults and limitations on heirs’ liability.	Defender relied on these principles to argue against liability.
Voet, l. 27. t. 7. § 6	Modern practice supporting civil law actions ex delicto against heirs.	Used by pursuer to counter the defender’s reliance on classical civil law limitations.

Court's Reasoning and Analysis

The court examined the nature of the action, distinguishing between penal actions and those seeking reparation of damages. It considered civil law authorities and modern practice regarding heirs’ liability for delicts of predecessors. The court noted that although the defender argued the money was taken for the rebel cause and not for personal gain, the taking satisfied the definition of theft (lucri faciendi causa). The bond produced did not prove the money was applied as claimed.

The court also addressed the assignation of debt produced by the pursuer, finding it insufficient to negate the claim, especially given the original landowner’s expectation of repayment from official sources. While the assignation suggested a voluntary loan, the court gave limited weight to this, considering it a treasonable document not supporting any right in law.

Ultimately, the court rejected the defender’s defenses, holding the heir liable for the principal sum, interest, and process expenses. The court superseded further advice on the title to the debt, which was later not sustained, but this did not affect the liability finding.

Holding and Implications

The court found the defender liable in the principal sum, interest, and expenses for the money levied during the rebellion and rejected defenses based on penal action exemptions for heirs and alleged voluntary loan.

The direct effect is that the heir is responsible for restitution of the sum taken by his predecessor. The opinion does not establish new precedent on the broader liability of heirs beyond affirming the application of existing civil and penal law principles in this context.