Scottish Court of Session Decisions

Colonel W. H. Stopford Blair died on 20th September 1868, at which date he was heir of entail in possession of the estate of Penninghame, in Wigtownshire, and also proprietor of certain unentailed lands in Scotland and Ireland, and of an estate in the West Indies. By his last will and codicils one-half of the residue of his personal estate, which was very large, was destined to his only daughter Mrs Heron Maxwell, and the other half to his son Mr E. J. Stopford Blair, one of the defenders. The said defender was also one of his father's executors, his heir of entail, and heir in the fee-simple estates, and a trustee under the marriage-contract of his sister Mrs Heron Maxwell. Upon the trust-estate created under that marriage-contract (dated October 14, 1847), by which Mrs Maxwell inter alia assigned in trust the whole property and estate, real and personal, then belonging to her or which she might acquire during the subsistence of the marriage, the pursuer had been appointed judicial factor on 21st July 1874; and it was in connection with the management of that estate that the present action was raised.

Two main questions had arisen between the judicial factor and the executors of Colonel Blair. The first was as to the apportionment of the rents of Penninghame as between heir and executor, involving a dispute as to forehand payment and the previous usage on the estate. The other was in connection with the West Indian property belonging to the testator. The factor claimed a large balance from the profits and produce up to 31st Dec. 1868, the date of an arrangement entered into between the parties.

The present action was accordingly raised by the pursuer as judicial factor against Mr E. J. Stopford Blair and Mr Macnaughten, as the executors of Colonel Stopford Blair, and against the said Mr E. J. Stopford Blair as an individual, and the summons concluded for an order on the executors to exhibit and produce a full and particular account of their whole intromissions, and for payment with interest of such balance as should be found due by them to the pursuer as factor foresaid. The defenders explained in their statement of facts that a bill of complaint, of date 1st July 1869, having been filed in Chancery by the children of Mr and Mrs Heron Maxwell (as ultimate beneficiaries in the marriage-trust represented by the pursuer) against the present defenders and Mr and Mrs Maxwell and their marriage-contract trustees, Vice-Chancellor Sir J. Stuart gave decree on 24th July 1869 in terms of the prayer, and directed, inter alia, that so far as necessary the trusts of the marriage-contract and also of Colonel Blair's will and codicils should be carried into execution

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under direction of the Court of Chancery. The Chancery suit was still in dependence.

The defenders pleaded—“(1) Forum non competens. (2) Lis alibi pendens. (3) The accounts in question having been adjusted and settled, the pursuer is not entitled to open up the same. (4) The pursuer or his authors having duly received full and correct accounts of the executry estate, the defenders are entitled to absolvitor.”

On October 16, 1879, the Lord Ordinary ( Curriehill) pronounced an interlocutor repelling the 1st and 2d pleas-in-law for the defenders, and before further answer appointing the defenders to produce the leases of the Penninghame estate current at the death of the late Colonel William H. Stopford Blair, the whole executry accounts, including those in connection with the West Indian estates belonging to Colonel Blair, and the correspondence, &c.

The defenders reclaimed, and argued—Pleas (1) and (2) must be read together as one plea. The Court of Chancery having been first seised of this process, this Court was barred by comity from interfering, and even though it were likely that the questions arising to be tried would involve Scotch law, that would not prevent the English Court from accepting jurisdiction (see case of Parken). A Chancery administration suit, like a multiplepoinding, was vested in manibus curias independently of the nature of the questions which might arise in it ( Thomson's case). In the circumstances of this case Chancery was the forum conveniens, the estates being mainly English and the executors residing mostly there.

Authorities— Wilmot v. Wilson, March 6, 1841, 3 D. 815; Thomson (Fleming's Trustee) v. N. B. & Mercantile Assurance Coy., Feb. 1, 1868, 6 Macph. 310; Clements v. Macaulay, March 16, 1866, 4 Macph. 583; M'Morine v. Cowie, Jan. 16, 1845, 7 D. 270; Parken v. Royal Exchange Assurance Coy., Jan. 13, 1846, 8 D. 365.

The pursuer replied—This Court had undoubted jurisdiction, and the questions of the case might conveniently be tried here. That of the forehand rents, indeed, could not be tried in Chancery, as it depended entirely on Scotch law, and the English Court would have to send down a case, as they did once before in connection with this very administration ( Stopford Blair and Others' case). The pursuer's demand was a limited and perfectly reasonable one, and was necessary to enable him to see the estate under his charge properly administered.

Authorities— Lord Melville v. Lady Baird Preston, Feb. 18, 1838, 16 S. 472—reversed March 29, 1841, 2 Robinson's App. 88; Hawkins v. Wedderburn, March 9, 1842, 4 D. 924; Carron Company v. Stainton, Jan. 27, 1857, 19 D. 318; Carron Company v. M'Laren and Ors., 5 Clark (H. of L.) 416; Herries v. Maxwell's Curator, Feb. 6, 1873, 11 Macph. 396; Stopford Blair and Ors. v. Maxwell, May 31, 1862, 10 Macph. 760.

At advising—