but when the Legislature has said, you must state the facts upon which you rely, and you are at liberty to file interrogatories to substantiate the case made by the bill, it is impossible to say that it is necessary to have that charge in order to found the interrogatory, because it is not an interrogatory upon any fact issuable in the cause. The question whether the Defendant has in his possession particular books or papers is not a point to be tried at the hearing, but merely a question of evidence, and the object of the statute is to keep the evidence and the facts distinct. The Plaintiff must state the facts, and not the evidence in support of them. The object of the Legislature is that the bill should be as concise as possible, which I should to some extent defeat if I insisted upon having this charge inserted.

The other point pressed upon me by Mr. Rogers was my expression of opinion in a former case, to which I still adhere. I dislike extremely these exceptions as to documents, when the discovery can be easily obtained at Chambers under the new practice.

[li] In the Matter of THE TRUSTS OF CATHERINE ALLEN'S WILL.
In the Matter of THE 10 & 11 VICT. C. 96. July 8, 1854.

Jurisdiction. 10 & 11 Vict. c. 96, s. 2. Suit.

Under the Trustee Relief Act the Court has power to decide all questions that may arise concerning the fund in Court, just as in a suit, and may, if necessary, direct any issue to determine the sanity of any person, or for like purposes.

A suit is necessary if there are creditors or other unascertained claimants of the fund.

This was a petition concerning a fund which had been paid into Court under the Trustee Relief Act.

Mr. Willcock, Q.C., and Mr. Metcalfe, for the petition.

Mr. Rolt, Q.C., for some Respondents, said that the case was so complicated that a suit ought to have been instituted, instead of trying the questions upon petition under this Act. One question would be as to the sanity of a party since deceased at a particular period of his life upon which it might be necessary to direct an issue. The 2d section of the Act 10 & 11 Vict. c. 96, after giving a general authority to the Court to make orders on petition respecting moneys paid into Court under the Act, provided that, "if it shall appear that any such trust funds cannot be safely distributed without the institution of one or more suit or suits, the Lord Chancellor or Master of the Rolls may direct any such suit or suits to be instituted."

Mr. Willcock, Q.C., referred to Re Wright's Trust (15 Beav. 367).

Mr. Chandless, Q.C., Mr. De Gex and Mr. Humphry, for other Respondents.

THE VICE-CHANCELLOR Sir W. PAGE WOOD said that if there were creditors, or other unascertained claims, a suit might be necessary; but that, where there was no such question, and all parties were before him, the Court had jurisdiction, upon a petition under the Trustee Relief Act, to decide the matter, just as if it were a suit ; and, if necessary, the Court could direct an issue to try any question as to sanity or the like that might arise.

[lii] FLEMING v. EAST. July 12, 1854.

Further Consideration. Affidavits.

Affidavits as to matters directly in issue in the cause, which are filed after the filing of the certificate of the Judge's Clerk, will not be admitted at the hearing on further consideration, but, if necessary, upon the suggestion of counsel an inquiry may be directed.

The decree on the hearing of this cause directed an account to be taken of what, if anything, was due to the Plaintiffs in respect of the purchase-money of property

sold to the Defendant. The Judge's Chief Clerk, by his certificate, certified (in effect) that a certain sum of money was due to the Plaintiffs from the Defendant in respect of the purchase-money, and that the Defendant claimed to be entitled under a deed of assignment to a sum of money due from the Plaintiffs to a third party and thereby assigned to the Defendant, and to set off the last-mentioned sum against the amount found due from the Defendant in respect of the purchase-money. The assignment, which purported to be voluntary, was proved before the Judge's Clerk, and evidence was given that the Plaintiffs had notice of it, and no evidence impugning its validity was produced before him. But after his certificate was filed, and on the day on which the cause first appeared in the daily cause list of the Court for further consideration, the Plaintiffs filed an affidavit, tending to shew that the assignment was in fact a mortgage, and that it had been paid off; in other words, that the money which the Defendant, the assignee, claimed to set off really belonged to the assignor; the affidavit also alleged that the assignor could not be found.

Mr. Willcock, Q.C., and Mr. Deere Salmon, for the Defendant, objected to the affidavit being read, on the ground of its being filed too late. They contended that the practice of admitting affidavits filed after certificate would be very inconvenient, and tend to raise new issues and nullify the certificate. They said that the practice was not settled, and requested the Vice-Chancellor to decide the point in order that there might be a general rule on the subject.

Mr. Rolt, Q.C., and Mr. Jolliffe, for the Plaintiffs, argued in favour of the reception

of the affidavit.

THE VICE-CHANCELLOR said that he could not admit the affidavit; but the Plaintiffs' counsel might state, for the information of the Court, the facts set forth in the affidavit, so that, if necessary and proper, an inquiry might be directed.

Reports of CASES ADJUDGED in the HIGH COURT OF CHANCERY before Sir WILLIAM PAGE WOOD, Knt., Vice-Chancellor. By EDWARD E. KAY and HENRY R. VAUGHAN JOHNSON, of Lincoln's Inn, Esqrs., Barristers-at-Law. Vol. I. 1854 to 1855-17 to 18 Vict. 1855.

[1] In the Matter of THE ESTATE OF JAMES LONGWORTH, Deceased.
Dec. 12, 1853.

[S. C. 23 L. J. Ch. 104; 2 W. R. 124.]

Apportionment. Money Impressed with Real Uses. Lands Clauses Consolidation Act,

Land, which was devised by a will, dated in 1795, to A. for life, with remainder over, was taken by a railway company under the powers of their Special Act, and the purchase-money was duly ascertained, paid into Court, and invested in consols, and the dividends ordered to be paid to the tenant for life. The tenant for life died in February 1853. In October in that year the remainder-man petitioned for the transfer of the fund and payment of the last dividend to him. Held, that the money in Court could not be considered as land, for the purpose of the Apportionment Act of 1738; and that, therefore, the executors of the tenant for life took no part of the last half-year's dividend.

Held, also, that the costs of these executors must be paid not by the company, but by the Petitioners, and that the order should so specify in a simple case like the present.

James Longworth, by his will, dated in 1795, devised all his real estates to his son James for life, with remainder to trustees to preserve contingent remainders, with remainder to the first and other sons of his said son in tail, with remainder to his daughters as tenants in common in tail, with remainder to the testator's grandson, John Taylor, for life, with remainder to trustees to preserve contingent remainders, with remainder to his first and other sons in tail, with remainder to his daughters as tenants in common in tail, with remainder to John Longworth, the testator's brother, in fee.

[2] The testator died, and subsequently James Longworth, the son, died without issue.

Afterwards, in 1839, the Manchester and Birmingham Railway Company, under the powers of their Special Act, required part of the lands which were comprised in the will; and the purchase-money for the same was duly ascertained and paid into Court, and the land conveyed to the company.

On the 19th of November 1839 an order was made on the petition of the said John Taylor, who was then tenant for life of the estates under the will for investment of the fund in consols, to an account to be intitled "Ex parte The Manchester and Birmingham Railway Company, the account of John Taylor, the tenant for life,"

and for payment of the dividends thereof to John Taylor for his life or until further order, with liberty to apply.

By an Act of Parliament passed in the ninth and tenth years of the reign of Her present Majesty, incorporating the Lands Clauses Consolidation Act, 1845, the Manchester and Birmingham Railway Company were, with certain other companies, consolidated into the London and North-Western Railway Company.

John Taylor died on the 1st of February 1853 without issue, having made his will, appointing executors.

This petition was presented in October 1853, in the matter of the Special Act, and of the Consolidation Act, and also of the Lands Clauses Consolidation Act, 1845, by the persons absolutely entitled to the fund, praying for the transfer of it to them, and the payment to them of any cash which might be standing to the same account. Mr. Daniel, Q.C., and Mr. Wodehouse, for the petition.

[3] Mr. Giffard, for the executors of John Taylor, claimed to be entitled to a proportionate part of the last half-year's dividend to the day of John Taylor's death, under the 11 Geo. 2, c. 19, s. 15, A.D. 1738.(1)

The money was to be treated as land for this purpose, as it would be with respect to the law of descent. (See Re Taylor's Settlement, 9 Hare, 596; Re Horner's Estate, 5 De G. & S. 483.)

If John Taylor had been in possession of the land represented by this fund he would have been entitled to emblements; but if, as was most probable, he had let it to tenants, then he would have been entitled to an apportioned share of the rents under the statute, as his interest would have determined on his death.

THE VICE-CHANCELLOR Sir W. PAGE WOOD said that he thought it was a hard case, and that it was reasonable that the executors should have a share of the dividend; but His Honour was afraid that he could not treat the money as land for the purpose of the Apportionment Act of 1738.

Mr. Little, for the company, objected to pay the costs of John Taylor's executors. Mr. Wodehouse referred to sect. 30 of the Lands Clauses Consolidation Act, and to Re Tookey's Trusts (16 Jur. 708), in which Vice-Chancellor Kindersley decided that the exception in that section of such costs, "as are occasioned by litigation between adverse claimants," was not intended to apply to a question of construction decided by this Court upon petition, but to a case where an action at law was necessary to decide the rights of the parties; but he was informed by the registrar that the usual form, when the costs were di-[4]-rected to be paid according to the Act, contained the same words of exception; and it was left in that form to the Taxing Master.

THE VICE-CHANCELLOR Sir W. PAGE WOOD said that, in a more complicated case, he should probably have followed the precedent cited; but that, in such a simple case as this, the costs had better be separated at once; and therefore the Petitioners must be ordered to pay the costs of the execution of John Taylor; and the company must be ordered to pay the costs of the Petitioners, except those costs. The matter must be adjourned into Chambers to inquire into the Petitioners' title.

[4] HARROD v. HARROD. June 27, 28, 30, 1854.

[S. C. 18 Jur. 853; 2 W. R. 612. See Moss v. Moss [1897], P. 269.]
Marriage Contract. Deaf and Dumb. Sanity. Issue. Evidence.

The contract of marriage is, in its essence, a consent on the part of a man and woman to cohabit with each other, and with each other only. The religious element does not require anything more of the parties; and therefore it is not essential that all the words of the marriage service to be repeated by the man and woman should be actually said; but, the ceremonies required by law, such as the publication of

(1) The Amending Act, 4 & 5 Will. 4, c. 22, which received the Royal assent, A.D. 1834 (June 16), only applies to rents, &c., payable "under any instrument executed after the passing" of that Act. (See sect. 2.)