Wedderburn v Wedderburn

wedderburn v. wedderburn. Mm-ch 4, 1840. [S. C. 2 Keen, 752; 4 My. & Cr. 41; 9 L. J. Ch. (0. S.), 205; 4 Jur. 66, 691. See DawJdns v. Simmetti, 1880, 50 L. J. Prob. 32 ; M'Henry v. Lewis, 1882, 22 Ch. I). 405.] Plaintiffs, who had obtained in this Court a decree for an account against three Defendants, two of whom resided in Scotland, and all of whom had real property C. xxi.-8 226 WEDDERBURN V. WEDDERBURN 4 MY. ft OR. 686. there, brought actions in Scotland against the same Defendants for the same demand ; and they obtained leave from this Court to prosecute the Scotch actions so far as should be necessary for the purpose of obtaining such security as it is in the power of the Scotch Court to give for the amount which, upon taking the accounts directed by the decree, should ultimately be found due to the Plaintiffs. The terms of the decree made by the Master of the Rolls in this cause, are stated in the second volume of Mr. Keen's Reports (page 752), and the Lord Chancellor's judgment, affirming that decree upon appeal, is reported in a former part of this volume (page 41). Three of the Defendants, viz., Sir David Wedderburn, Andrew Colvile, and Alexander Seton, having landed pro-[586]-perty in Scotland, and Sir D. Wedderburn and Mr. Seton being resident there, each of the Plaintiffs (Mr. and Mrs. Hawkins being together considered as one) commenced an action against the three above-named Defendants in the Court of Session in Scotland, the nature and objects of which action will beat appear from the following report. The summons in each action was, mutatis mutand.is, to the same effect, and the .statement of one, viz., Charles Wedderburn Webster's, will therefore be sufficient. The summons in his action stated the circumstances of the case, and the bill in -Chancery, and the decree made at the Rolls, and the Lord Chancellor's affirmance of that decree, and then proceeded in the following terms :- " That by the said judgment it has been finally determined and decided, inter alia, that the children of the said David Webster are entitled to participate, under the òcircumstances above set forth, in the gains and profits made by the carrying on of the foreaaid partnership business by the several and successive firms aforesaid, and partners thereof, since the death of the said David Webster, according to the said David Webster's share and interest in the said co-partnership business as aforesaid; and that according to the several and respective proportions thereof falling to the said children, under and by virtue of the said David Webster's will; and that the said Sir David Wedderburn, Andrew Colville, Alexander Seton, and John Wedderburn (the second), individually, as surviving partners of the said several co-partnerships, the said Sir D. Wedderburn as surviving executor of the said deceased David Webster, the said Andrew Colvile and Alexander Seton as surviving executors and personal representatives, and .as such liable for [687] the debts and obligations of the foresaid John Wedderburn (the first), and also of the said James Wedderburn, who was also an executor and personal representative of the said John Wedderburn, the said John Wedderburn (the first) and James Wedderburn having been the other partners of the said firms, are liable, conjunctly and severally, to the said David Webster's children, for and in payment of their respective shares foresaid, as the same shall be ascertained : That the .said parties above named are liable in payment to the Pursuer, and the said David Webster's said children, as said is : That the said John Wedderburn (the second) of Auchterhouse is since dead, and no one has taken up his representation, either in heritage or moveables, or become liable, as his representative, for his debts; That under and by virtue of the said David Webster's will, his residuary estate was and is òdivisible among his said five children, who were surviving at the period of his death, in shares and proportions following; viz., seven twenty-third parts thereof to the said .Sir James Webster Wedderburn, his eldest son, and four twenty-third parts to each of his said other four children, and, inter olios, to the pursuer, the said Charles Wedderburn Webster: That by the death of the said David Wedderburn Webster, his said share thereof was and is divisible among the then surviving four children of the said David Webster, in the shares and proportions following; viz., to the said Sir James Webster Wedderburn, seven nineteenth parts, and to each of the said other three children four nineteenth parts : That the pursuer is thus entitled to four twenty-third parts, and four nineteenths of four twenty-third parts of the whole gains and profits foresaid: that the share of the said profits effeiring to the said David Webster, and his estate, from the said 1st day of May 1801, to the 1st day of May 183Y inclusive, amounts to the sum of £462,076, 7s. 2d., or thereabouts, coniform to an account [588] thereof made out under direction of the Master in the said High Court of Chancery, and that exclusive of periodical accumulation of interest on the said profits, of which & condescendence will be lodged in the course of the process to follow hereon : That 4 MY. ft CR. 989. WEDDERBUBN V. WEDDERBURN 227 the proportions of the said sum of £46:2,076, 7s. ~2d. exclusively falling to the pursuer, as said is, amount to the sum of £97,279, 4s. 7d., or thereabouts, exclusive of periodical accumulation, as said is : That as the said Sir David Wedderburn, Andrew Colvile, and Alexander Seton, have lands, heritages, and other property heritable and moveable within Scotland, and reside therein, at least are subject to the jurisdiction of the Scottish Courts, and to the execute rials of the law within Scotland, necessary it is for the Pursuer, and the Pursuer is entitled, to have them convened before the Lords of our Council and Session in Scotland, in order to have decree against them, to the effect and in the terms underwritten, so that the Pursuer may operate payment of the said sum against the said Defenders, and their said estates within Scotland : .and although the Pursuer has often desired and required the said Defenders to make payment to him of the foresaid sum, deducting the payments before mentioned, and of accumulated interest thereon, yet they refuse and delay so to do : Therefore, the said Sir David Wedderburn, residing at Keith House, near Tranent, Andrew Colvile of Craigflower aforesaid, residing in London, and Alexander Anderson or Seton, of Lentall or Lenthall aforesaid, also residing in London, surviving partners foresaid, individually, and as executors aforesaid, ought and should be tlecernerl and ordained, by decree of the Lords of our Council and Session, conjunctly and severally, or severally and according to their several and respective liabilities in the premises, to make payment to the Pursuer of the foresaid sum of £97,279, 4s. 7d., [589] or such other sum, more or less, as shall, in the course of the process to follow hereon, be -ascertained to be the amount of the Pursuer's share and proportion of the gains and profits of the said business effeiring to the estate of the said David Webster, but deducting always therefrom the foresaid sum of £13,055, 7s. 3d. paid to the Pursuer as above set forth ; item, of the legal interest of the balance from and since the said 1st day of May 1837, and until payment; item, of the sum of £217,818, 7s. 8d., or such further and additional sum, less or more, as shall be ascertained, in the course of the process to follow hereon, to be the Pursuer's share and proportion of the accumulated interest on the said profits, periodically, during the said period from 1st May 1801 to the 1st day of May 1837, as said is: without prejudice always to the Pursuer's claim against the said Defenders, and each or any of them, as executors foresaid or otherwise, for the share and proportion of the other means and estate of the said David Webster, for which...