Henderson v Henderson. [HIGH COURT of CHANCERY]

JurisdictionEngland & Wales
CourtChancery Court
Judgment Date20 Jul 1843

English Reports Citation: 67 E.R. 313



S. C. at law, 6 Q. B. 288; 11 Q. B. 1015. See Mutrie v. Binney, 1887, 35 Ch. D. 620; In re Henderson, 1887-89, 35 Ch. D. 716; 37 Ch. D. 244; and (sub nom. Nouvion v. Freeman), 15 A. C. 1. Discussed, Worman v. Worman, 1889, 43 Ch. D. 296.

[100] henderson v. henderson. July 4, 7, 11, 20," 1843. [S. C. at law, 6 Q. B. 288; 11 Q. B. 1015. See Mutrie v. Binney, 1887, 35 Ch. D. 620; In re Henderson, 1887-89, 35 Ch. D. 716; 37 Ch. D. 244; and (siib nom. Nouvion v. Freeman), 15 A. C. 1. Discussed, Worman v. Gorman, 1889, 43 Ch. D. 296.] The next of kin of an intestate filed their bill in equity in the Supreme Court of Newfoundland against A., the brother and deceased partner of the intestate, for an account of the estate of the father of A. and of the intestate possessed by A., and an account of the partnership transactions, and the dealings of A. with the estate since the death of the intestate. The bill was taken, pro confesso, against A. in the Colonial Court, and, on a reference, the Master reported that certain sums were due to the several next of kin on the account of the estate of the intestate's father possessed by A.; but that no account between A. and the intestate had been laid before him: the Supreme Court decreed that the sums found by the Master to be due to the next of kin and the costs should be paid to them by A. The next of kin brought their actions in this country against A. upon the decree. A. then filed his bill in this Court against the next of kin and personal representative of the intestate, stating that the intestate's estate was indebted to him on the partnership accounts and on private transactions; alleging various errors and irregularities in the proceedings in the Supreme Court, and that A. intended to appeal therefrom to the Privy Council; and praying that the estate of the intestate might be administered, the partnership accounts taken, the amount of the debt due to A. ascertained and paid, and the next of kin restrained by injunction from proceeding in their actions. Demurrer, for want of equity, allowed on the ground that the whole of the matters 314 HENDERSON V. HENDERSON 3 HARE, 101. were in question between the parties, and might properly have been the subject of adjudication in the suit before the Supreme Court of Newfoundland. That, inasmuch as the Privy Council is the Court of Appeal from the Colonial Court, and has jurisdiction to stay the execution of the decree pending the appeal, the Court will not interfere by injunction, on the ground of error or irregularity in the decree of the Colonial Court. Whether, in a case of error shewn in the judgment of the Court of a foreign country, from which there was no appeal to any of Her Majesty's Courts, the decision would be the same, quaere ? The bill was filed in May 1843 by Bethel Henderson against Elizabeth Henderson, the widow of Jordan , Henderson, his deceased brother, and Charles Simms and Joanna, his wife, who was the daughter of Jordan; and also against J. Gadsden, the administrator of the estate of Jordan, in England; and it stated that William Henderson, a merchant in Bristol and Newfoundland, the father of the Plaintiff and Jordan Henderson, in 1808, admitted them into partnership with him, and in 1817 resigned all his interest in the trade to them: that the Plaintiff and Jordan carried on the business in partnership from 1817 : that the share or interest in the partnership, which their father gave up to them, was worth £15,000 or thereabouts, and was continued in, and formed part of, the partnership of the Plaintiff and Jordan : that Jordan Henderson died in March 1830 intes-[101]-tate, leaving the Defendants, Elizabeth, his widow, Joanna (the wife of the Defendant, C. Simms), his daughter, and also leaving William, a son: that Elizabeth, the widow, obtained letters of administration of the estate of Jordan in Newfoundland, and, together with the Plaintiff, carried on the partnership business for the purpose of winding it up; but before that was done, a fire in the island in August 1832 destroyed the buildings and plant of the partnership, and all the books, except the ledgers; and that disputes then arose between the Plaintiff and Elizabeth, the widow. The bill then set forth a petition presented in November 1832 by the Defendants, the widow and children of Jordan, to the Judges of the Supreme Court in Newfoundland, which alleged that William, the father, before his death, gave or bequeathed £1000 to or for the Petitioner,- Joanna, aud gave or bequeathed the rest of his estate between Bethel, the Plaintiff, and Jordan, his sons, equally: that Bethel was living with William, the father, at Bristol, and possessed himself of his estate : that Jordan died possessed of considerable real and personal estate in the partnership, both in England and Newfoundland: that Bethel had possessed himself of all such estate, as well as of the partnership books, and carried on trade therewith, and had drawn monies thereout: that he also refused to satisfy the Petitioners whether Jordan had left any will; and prayed that Bethel might be decreed by the Supreme Court to come to an account in respect of all and singular the premises; and that as well the estate of William, the father, as the estate of Jordan, might be applied in a course of administration. The bill stated that no personal representative of William, the father, or of Jordan, was a party to the said proceeding in the Supreme Court: that Elizabeth, [102] the widow, presented another petition, dated the 8th of December 1832, not intituled in any cause to the.said Judges, which alleged that, since administration of the estate of her husband had been granted to her, Bethel, the Plaintiff, had rendered her certain accounts of debts and assets in Newfoundland, but refused to account to her for the property of the deceased in England : that he was then about to leave the country, whereby the Petitioner would, in all probability, be prevented from bringing him to any account respecting the said estate, unless the Supreme Court should grant immediate process against him : that a brig, 'called " The Elizabeth," belonging to the intestate and Bethel equally, had, without the Petitioner's authority, been laden at Harbor Grace, by Bethel, principally on freight, under an engagement to sail on the 10th of December for Bristol: that the Petitioner had good reason to know that the monies of Jordan, in the possession of Bethel in England, amounted from £5000 to £8000 : the Petitioner therefore prayed the writ of ne exeat regno, to restrain Bethel from departing out of the jurisdiction, and that he might be ordered to exhibit to the Court a full account of all the estate of Jordan come to his hands : that C. Simms, by SHARE, 103. HENDERSON V. HENDERSON 315 affidavit, intituled " Elizabeth Henderson v. Bethel Henderson," deposed that Bethel was then justly indebted to Elizabeth, the widow, administratrix of the estate of Jordan, in the sum of £3100 sterling, exclusive of such further sum as he might be indebted to her on account of monies and property in England; and that he threatened to leave the island and go beyond sea, out of the jurisdiction of the Court, whereby the said debt would be lost or endangered, or the recovery thereof would be difficult. The bill stated that an instrument purporting to be a writ of we exeat regno, dated the 10th of December [103] 1832, was issued out of the Supreme Court, with a summons or subpoena, in the first-mentioned suit: that the Plaintiff, on the 22d of December, executed his bond, with two sureties, to the high sheriff of the island, in the sum of £6200, conditioned to be void if the Plaintiff should personally appear before the Court by the 10th of June then next, and render a full account of the estate of Jordan come to his hands, whether arising from the estate of William, the father, or otherwise; and also an account of the said partnership business, and answer and fulfil the orders and decrees of the Supreme Court touching the said estate, and also touching a certain bill, then filed, of Elizabeth Henderson and others, against the Plaintiff: that the Plaintiff then quitted the island and returned in 1834: that, on the 14th of June 1834, the Supreme Court ordered the bond to be put in suit, unless the Plaintiff should put in his answer to the first petition ; and, in July 1834, the Plaintiff appeared in that suit by H. A. Emerson, Esq., Her Majesty's Solicitor-General in the island, who also prepared the Plaintiff's answer, which was sworn and filed on the llth of July 1834, intituled in the first suit only. The bill then stated the purport of the Plaintiff's answer: that exceptions were taken by the Petitioners, for that he had not set out an account of the partnership transactions, or of the estate of Jordan possessed by him; or whether William, the father, left any and what estate, for the use of Jordan or his family: that the ' Supreme Court ordered that the accounts prayed for in the first suit should be filed before the 25th of July, or that the bond should be assigned to the Petitioners to be put in suit: that the Plaintiff had, for several years, employed J. Fitzgerald, an accountant in the island, in keeping the accounts of the said business; and in order that Fitzgerald might make out the accounts of the [104] partnership, the Plaintiff, on the 20th of July, delivered over to him the books and accounts of the business in England, and on the same day the Plaintiff quitted the island. The bill then stated that Fitzgerald made out in distinct parts the accounts of the partnership from 1817 to the death of Jordan, and the subsequent accounts of the Plaintiff, and filed the same on the 4th of August 1834, and verified them by affidavit, as true extracts from the Plaintiff's books : the bill stated the balances appearing by the several accounts; the...

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