1843.-Pringle v. Crookes.

Mr. Kindersley, contra, for the plaintiff.

THE MASTER OF THE ROLLS:-The defendant Crookes has the right of reply on his exceptions: he therefore is entitled to begin on the exceptions.

As to the rehearing, the objection to the decree is either one of want of parties or to a part only of the decree.

In either case the defendant will be entitled to reply. The defendant must therefore begin.[1]

*Mr. Pemberton Leigh and Mr. Montagu for the de- [*260] fendant, then contended, that either the decree or the master's finding must be erroneous, for if the decree warranted the accounts of the produce of the real estate, then it was wrong, being made in the absence of the heir at law; and, on the other hand, that if it did not warrant such account, then that the master was wrong in including the 22531. 4s. 10d. in his report.

Mr. Kindersley, Mr. G. Turner, and Mr. Parry, for the plaintiff, argued, that the decree did not direct any account of the real estate. That the bill was not for the administration of the estate, but one for an account by a principal against his agent, and that it mattered not from what source the receipts of the agent on account of his principal had been derived.

Dec. 22.-THE MASTER OF THE ROLLS- -I have read the pleadings in this case, and I am of opinion that the bill neither required, nor in any way entitled the plaintiff to a decree for the administration of the estate of the testator Robert Marshall, received by the defendant Crookes and his deceased partner Thomas Todd.

The bill is not expressed with the clearness and precision which might have been wished, but Todd & Co. having been the agents and consignees of the testator in his lifetime, and of his trustees and executors after his death, the object of the bill was, to have, as against Crookes the surviving partner and against

[1] Roberts v. Marchant, 1 Phillips, 370,

1843.-Pringle v. Crookes.

Todd the executor of the deceased partner, an account of the receipts and payments of Todd & Co., as such agents and consig

[*261]

nees.

*If there had been greater doubt than there is upon the bill, such doubt would have been removed by the answer of Mr. Crookes and the first schedule thereto, which, with great clearness and propriety, set forth the nature of the transactions and accounts between Todd & Co., as the agents of Marshall in his lifetime, and of his Jamaica executors after his death.

It appears that the executors in Jamaica, not only made to Todd & Co. consignments on account of the crops and produce of the estate, but also remittances on account of the moneys arising from the sale of the estates, under the direction of the testator's will. The bill, for some reason which has not been explained, in praying an account of the receipts of Todd & Co. after the testator's death, asks only for an account of all sums of money received by them on account of his personal estate subsequently to his death. The bill, however, specifically states several sums as having heen received by Todd & Co., during their agency, from the executors, and the sums specifically stated amount, in the whole, to the sum of 2253l. 4s. 10d. The bill does not state that these sums were parts of the purchase money arising from the sale of the real estate; but it distinctly appears from the answer, that they were received on account of such purchase money. There was no amendment, either of the statements or of the prayer of the bill, on that account; and the decree of the Court of Exchequer, in conformity with the prayer of the bill, directs the master to take an account of all and singular the dealings and transactions in the bill mentioned between Todd & Co. and Robert Marshall deceased, and of all sums of money received

by them on his account in his lifetime, and of all and [*262] singular the said dealings and transactions with them, and of all sums of money received by them on account of his personal estate since his decease.

The master, in his report, stated the nature of the account, and that it continued to be an account current up to the death of Thomas Todd, and that the several sums amounting together to the sum of 22531. 4s. 10d. were received by Todd & Co., and were en

1843.-Pringle v. Crookes.

tered to the credit of the estate of Robert Marshall in the same account current, and were payments on account of the purchase money for the Ridge estate.

Before the master's report was made, the defendant Crookes, having ascertained that the master intended to charge him with the purchase money which Todd & Co. had received and entered to the credit of Robert Marshall's estate, presented a petition of rehearing, alleging that he was aggrieved by the decree, and submitted that the cause ought to have been ordered to stand over, with liberty for the plaintiff to amend his bill by adding parties thereto, or that the accounts, by the decree directed to be tåken, of the dealings and transactions with Todd & Co. since Robert Marshall's decease, and the payments consequential thereon, ought to have been confined to the personal estate and effects of Robert Marshall.

After the report was made, the defendant Crookes filed several exceptions thereto, and thereby, amongst other things, insisted that the master ought not to have brought the several sums amounting to 22531. 4s. 10d. into account, for that the payments were not made on account of Robert Marshall's personal estate, but on account of his real estate, and the decree did not authorize any account thereof to be taken.

*The petition of rehearing and the exceptions are [*263] brought on together, and the defendant Crookes puts his case, as to the 22531. 4s. 10d., thus:-he says the decree either directs the account of these purchase moneys to be taken, or it does not; that if it does, the decree is erroneous, and he desires to have it varied on a rehearing, and if he can obtain a rehearing, he submits to have the exceptions overruled. On the other hand, he alleges, that if the decree does not authorize an account of these purchase moneys to be taken, the report is erroneous, and he claims the benefit of his exceptions, and submits to have the petition of rehearing dismissed.

It appears, that the testator Robert Marshall, by his will, directed his executors in Jamaica, to sell his real and personal estate in Jamaica, and remit the proceeds to Great Britain, to his executors there, and by the accounts it appears, that the executors in Jamaica made their remittances to England, including

1844.-Trotter v. Walmesley.

the proceeds of the real estate in Jamaica, to the house of Todd & Co., who had been the consignees and correspondents of the testator, in his lifetime. The remittances being made by the executors in Jamaica, were intended for the executors in Eng land; and it appears from the will, as well as from the nature of the transactions between the parties, that the consignees and correspondents in England, by whom the remittances were received, were, and considered themselves to be, accountable to the executors in England, one of whom was a partner in the firm of Todd & Co., and the other is the plaintiff in this cause.

I do not now understand why the word personal estate was introduced into the prayer of the bill, and into the de[*264] cree. It could not have been intended by *the plaintiff to exclude from the accounts the very sums of which the receipt was charged by the bill; and if there had been any doubt as to these sums being intended, by the decree, to be included in the account, it might perhaps have been proper to vary the decree, by removing such doubt, and directing that the sums specifically mentioned in the bill, and which by the answer appear to have been proceeds of real estate, should be included in the account; but I am of opinion, that no such variation as is asked by the petition of rehearing ought to be made. It does not appear to me that any additional parties are required, or tha: the sums in question ought to be excluded from the account. For these reasons, I think that the petition of rehearing must be dismissed, and, for the like reasons, I think that the exceptions, if they are all grounded upon the objection that the sums amounting to 22531. 4s. 10d. are brought into the account, must be overruled.

1844: January 25.

TROTTER V. WALMESLEY.

The preliminary accounts of the testator's estate, debts, &c. being directed upon motion, it was ordered that the creditors who should not come in should be excluded the benefit of the order.

1844. Trotter v. Walmesley.

MR. Turner and Mr. Jervis moved for a reference to the master to make certain preliminary inquiries under the 5th order of the 9th of May, 1839.(a) It was asked that the master should ascertain the children of the testator, and, if found to be parties to the suit, then that he should proceed to take the accouuts and advertise for creditors. They proposed that the order should contain a direction that the creditors who should not come in should be excluded from the benefit of the order.

Mr. Cooke, contra, argued that the latter clause ought [*265] to be omitted. In Hornby v. Hunter.(b) it was decided, that though an inquiry as to debts had been made before decree, yet the decree at the original hearing must nevertheless direct an account of debts; and in Teague v. Richards, (c) although an order for preliminary accounts and inquiries had been obtained in a suit for administering a testator's estate, yet the court would not, on that account, restrain a creditor from suing the executors at law.

Mr. Turner, in reply, said that Hornby v. Hunter did not apply, it being a case before the new orders.

THE MASTER OF THE ROLLS:-Teague v. Richards merely shows that preliminary inquiries were not, as against a creditor desirous of proceeding at law, considered to be of the same authority as a decree.

By inserting the clause in question there will be this advantage, that if the accounts are properly taken, an order for payment of the debts may be made at once by the original decree.

It was accordingly ordered, in the event of the proper parties being before the court, that the master should cause advertisements for the creditors of the testator to come in and prove their debts, and he was to fix a peremptory day for that purpose; and it was ordered "that such of the said creditors as should not

(a) Ord. Can. 136, [ante, 245, n.] (b) 1 Russ. 97.

(c) 11 Sim. 46.