The Express.
London, England, 1847-03-18 00:00:00

Before the Neater of the Ron..

ALLTRIBT e. ALLNIZT.--OPENINO WITTLID ACCOUNT..
—This bill was filed by Mr. William Allfrey, the banister,
against the personal remmentatires of his uncle, Mr. Edwd.
Althey, deceased, and the administrator of the plaintiff's
father, Gems Allfrey, to open the accounts relating to the
estate of Oserge Allfrey, who died intestate in 1802. Cleo.
Allfrey left five children and a widow hint aurviving ; the
plaintiff, who wee the youngest, being a posthumous child.
Edward Alleys',
_being the brother of the intestate, pro.
cured letters of adarimaration to be granted to himself, the
widow having declined to apply for them, and the children
being all inflate He acted as the guardian of the Mtn.
tate'. children, and managed their respective shares in the
intestate's property. la 1823 the plaintiff attained his
majority ; and, in 1825, he signed the accounts
relating to the intestate's estate submitted to him by his
uncle ; and in 1828 the latter paid over the balance appear-
ing by the accounts to be due to him. The bill contained elle
Rations and charge. to show that the uncle had never given
the plaintiff aa opportunity of inspecting the accounts, and
had got him to sign them aan improper manner. It or
Erthat the de carried on a commercial business in
tl nu
; and it was alleged that he had improperly sold
out stock belonging to the intestate's estate, and applied the
proceeds and other parts of the estate in his own business,
and for his own profit, by which he had realised large gains,
but had not accounted for them in his accounts of the
estate ; and snore also &Named on examination to be appa-
rent od the face the accounts, which, it was
alleged, were fictitious, and prepared for the oc-
casion. The uncle died in 1831, leaving a large
estate behind him; and the plaintiff alleged that
It was not till after his death that he had disco-
vered the errors in the accounts, and the alleged improper
dealings with the property. It appeared from the answers
that there were no vouchers in existence relative g to the in•
testate's (o..orge Allfrey's) estate, and the defendants in-
slated that, alter the length of time that had elapsed, the
accounts ought not to be opened, and that the plaintiff ought
not to be allowed to surcharge and falsify the accounts,
which was prayed by the bill as alternative relief. They
ermtended that if the administrator had not debited himself
in the amounts with sums received, there were also several
rums for which he had not given himself credit ; and, upon
the whole of the accounts, taken together, the plaintiff had
not much to cunplain of. The plaintiff, on the other bend,
insisted that the administrator ought to have invested ba-
lances from time to time in his hands, which he had not
done, and that he was entitled to have the accounts opened,
and an account taken ef such balances and interest, with
half-yearly rests; or, at all events, that he was entitled to
have liberty to surcharge and falsify the account.. The ac-
count of profits made by the administrator with the testator's
property, was abandoned as one too difficult to be taken.
Mame Hindersley and Hooch appeared for the plaintiff;
Mesas. Turner, Roupell, and H. Clarke for the executors of
Edward Allfrey.
The Master of the Rolls took time to consider his decision.

Before the Vies-Cheneenar at England.
SMAIITOK 11. COAXIAL—INJUNCTION TO REETRAIN PRO-
CIEDINGS UNDIA A Junoa's °ADEL—The plaintiff in this
sass was the executor of a Mr. Clay, who bad lent a sum of
4001. to the defendant, secured upon mortgage in fee of
*Wain lands. The mortgage money not having been paid
at the time appointed, the plaintiff brought an action at law
against the defendant upon the covenant in the mortgage
deed, end the defendant obtained an order to may the pro-
ceedings at law upon payment of the principal, interest, and
soda. The defendant having complied with these terms, ob-
tained an order from the judge that the plaintiff might
deliver up the mortgage deeds. The plaintiff filed the pre-
sent bill for foreclosure of the mortgage, and an injunction
was now applied for to restrain the execution of the judge's
order, on the ground that he had a further lien upon the
deeds for costs which were not included in the action.—Mr.
Bethel' and Mr. Smythe appeared for the motion.—The
Vice-Chancellor said the present application appeared to be
contrary to the usual course, but Ai the circumstances wero
so peculiar in their nature he thought the plaintiff was enti-
tled to the injunction.

Belem Vies-Cheknoeller Wipenern.
KINWAJI V. DAKIIL.—CONSIONMINT TILUST.—The facts
of the case were as follows :--J. F. Kirwan was the owner of
a plantation at Mootaerrat, in the West Indies ; the plain- '
Off, Matthew Kirwan, was his agent in this country, and
wee also entitled to an annuity of 3001., parable out of the
plantation. J. F. Kirwan was desirous of making arrange-
ments with some parties in this country to send out consign-
ments to the West Indite for the due cultivation of the
estate, and sallbotleed the plaintiff to make arrange-
ment' in Ms itelntry for that purpose, as well as
for the pagment of his own annuity and of an
annuity elf 1001. • year to somebody else. The
plaintiff tbsewpon, according to the bill, entered into an
nrrangentem* with the defendants, Messrs. Daniel and Co.,
la October. Oil, by which it was agreed between the plain-
tiff as repamomilog L F. Kirwan, and the Meson. Daniel
and Co.. Ire es War should honour bills drawn by J. F.
Kirwan, fir ibis Few salivation of his estate, and also for
=of the MK a per to the other creditor; and should
thil espribie es (beeld be required for the cultivation of
the estate;and *mold also pay the plaintiff, Matthew Kirwan,
=rty. 73i. ha embargo of his annuity of 3001. a year;
and Cs. undertaking, should there be a
surplus is their bands, to pay such surplus in the
manner mentioned in the agreement. Daniel and Co.
became the Goodrum of the proceeds of the estate,
and regularlipiaid the annuity to the plaintiff up to a certain
time. Ha afterwards, however, discontinued doing so,
the present was flied against J. F. Kirwan and the
Xmas. Daniel and Co., to compel payment by the latter, as
tresteeefordestskitil, albs unatuty in question. Te this bill
the siehmiento Ileram. Daniel) demurred, and upon the
the 26th Feb. last, Mr. Rolt
=dr. D=mon. eagesegeof the demurrer, insisted that
the plaintiff Isetneelyht sr interest under the agreement in
qualities' to sue in bin annuity, although J. F. Kirwan, the
author a the trust, might have compelled the
dehodiate to pay it. The plaintiff being named in
the egteemeat merely as agent for J. F. Kirwan,
it was Not intended to give him any right; and the defen-
amen (the Mew. Daniel) might have been content to be
gable to the mmeignor, though not to a third party. The
deed, therefore, gave no interest to the plaintiff; and the
notice of the deed and the subsequent payrneets thereunder
ecookt not enlarge the effect of the deed.—Mr. Romilly and
Mr. Heathfield, eontri, contended that as the consignments
had been made to the MOM". Daniel as trustees for payment
of the annuity in question, and the trust had since been acted
upon, the annuitant was entitled to enforce payment of it by
a exit.—Lt the conclusion of the argument his Honour over-
ruled the demurrer, on the ground that the court would
always exercise • discretion upon demurrer, and that that
course was the best, inasmuch as it was not often
that the exact words of a bill corresponded with
the gruth of the one. Since that, however, all the eases
bearing upon the subject bad been cited and commented
upon is the case of Malcolm v. Scott," recently argued
before his Honour, in consequence of which, his Honour
said, he was now prepared to express an opinion upon the
present one. His Roams then proceeded to state that he
gave no opinion upon the agreement alone. 'I he question
was, whether the plaintiff had s right to sue in consequence
of the payment el the annuity under the deed. It was said
that the deed gave no interest to the creditors; and then
that a notice to the creditors that a deed which, per ae, gave
them no interest, hod been executed, could not enlarge
the sleet of the deed. That argument, however,
though it millet be tens ex fax as the agreement
MIS 111111111OMME, malted altogether ;the consideration that
although lho unties eesM sot alter the effect of the deed,
ritioriest Air the ridden of the creditors: it being
. beds b ti= to lad at law, that notice
a currilmeNttalliboon behalf • bad been deposited, would
,semi rn Mishohelder We an agent for the creditor :
that wool et line &ellen was, that the creditor might
haw be Imo on the faith of the notice. His Honour
ecosheied by teminaing the order made at the conclusion of
the streasent, apse the authority of the on. of " Fitzgerald
e. graaram." (2 Rase, & M. 467), in which it had been held
that a 11111011ity was to be treated as one entire suns, and
not merely as saccessive several payments, and that where
an annuity was paid by a trustee, he thereby made himself
liable to pay it.