Scottish Court of Session Decisions

This was a petition at the instance of Mrs Sarah Russell or Russell, wife of Thomas Russel, wine and spiritmerchant, 61 Crown Street, Glasgow, with consent and concurrence of the said Thomas Russell, and of the said Thomas Russell for his own right and interest. The following averments were made in the petition:— The late Thomas Russell, father of the petitioner Mrs Russell, carried on business as a wine and spirit merchant at No. 18 Adelphi Street, Glasgow, up to the date of his death, which occurred on 1st March 1866. On 8th November thereafter, his testamentary trustees exposed the goodwill, fittings, and stock of the said business to sale by public auction, and they were purchased by his two daughters, viz., the present petitioner and her sister Margaret Russell. Besides contributing to the said purchase, the two sisters and their brother each paid £120 towards capital, for the purpose of procuring stock and carrying on the business. The said Thomas Russell received charge of the capital, and the business was conducted as formerly at No. 18 Adelphi Street, Glasgow, under the name of Thomas Russell. No written contract of copartnery was executed. The two sisters and their brother lived in family together until shortly before the petitioner's marriage, which took place on 18th December last, 1873. Since her marriage, the petitioner Mrs Russell, by herself and through her agents, repeatedly made application to the said Thomas Russell, respondent, for a statement of his intromissions and division of the profits arising out of the said business, and the parties have had several meetings to endeavour to adjust matters, but latterly Thomas Russell refused either to give the petitioners access to the business-books of the partnership, or to supply them with a statement of accounts. The petitioners thereupon requested that the business should be wound up, and that their interest therein should be paid out; but the said Thomas Russell, respondent, refused to make any payment whatever to the petitioners, either in name of profit arising out of the business, or on account of the petitioner Mrs Russell's share of the goodwill and stock of the copartnery. The petitioners thus had no share whatever in the business since their marriage, and the business was carried on by the respondents without regard to the petitioner's rights and interests. The license and lease of the premises being in the name of Thomas Russell alone, there was danger of his disposing of the same to the prejudice of the petitioner's claim. The prayer of the petitioners was “to sequestrate the estates of the copartnery carried on in the said name of Thomas Russell, wine and spirit merchant, No. 18 Adelphi Street, Glasgow, and to nominate and appoint such person as your Lordships may think fit to be judicial factor on the estates of the said copartnery, with power to him to enter upon the possession, management, and realisation of the said estates, to balance the books and accounts of the said copartnery, to settle the shares and interests of the three partners therein, and generally to wind up the said copartnery, and with the usual powers; the person to be appointed judicial factor finding caution before extract in common form; and to sequestrate, and to appoint a judicial factor as aforesaid ad interim.” Thomas Russell and Margaret Russell lodged answers, in which they stated that they were willing to hold count and reckoning with the petitioners, and argued that there was no necessity for the appointment of a judicial factor.

The Lord Ordinary granted the prayer of the petition, and appointed a factor “with the powers specially prayed for.”

The respondents reclaimed.

At advising—