whole question was investigated in the Divorce Court, as I am satisfied it can be investigated in the present case. It is not an unimportant circumstance to which I have called the attention of counsel, that this bill, having been filed in September is answered on the 7th of November, and that in his answer the husband swears that his wife has been guilty of adultery; that he was ignorant of that fact when he executed the deed, and that if he had known it he would not have executed the deed at all. This notice of motion was given two days after the answer was put in, and, I am satisfied, with the knowledge that the answer had been filed and yet there is no amendment of the bill to negative those charges; and indeed the case comes on with the admission that this lady has been guilty of adultery, and that she had given her husband the most solemn assurances to the contrary. Therefore I am of opinion, first, that this deed can be used as a defence in the Divorce Court; and, secondly, that a party coming into this Court to ask for its interference to prevent legal proceedings, whether they be proceedings to recover a debt by an action at law, or to enforce any right in the Court of Divorce, must come here with clean hands, and with a case entitling him to call upon a Court of equity to interfere; but this lady, coming here as she does, upon the admission of her own counsel that she obtained the execution of this deed by the grossest misrepresentations, does not come into this Court under circumstances which can justify me in interfering in any way on her behalf. Upon that ground also, as well as the first ground, the motion must be refused. Now, it has been strongly urged by Mr. Cotton that this gentleman must be considered as having known that his wife had been guilty of adultery, and the topic which has been most strongly pressed upon me is that he had such suspicions that she had committed adultery in India as almost to amount to certainty; and that, in fact, he believed it. I will assume that he knew that she had committed adultery in India, and with that knowledge he resumed cohabitation with her on, his return from India. That was an absolute and conclusive condonation of all that had taken place before. But if he did condone that adultery of which he was aware in India, is that any licence to her to commit adultery after he resumes cohabitation? Certainly not. If, therefore, taking a merciful view of her conduct, he condoned her adultery when he resumed cohabitation with her in April last, believing that she had been guilty of adultery in India, is that any pardon or forgiveness of her having done the same thing in England? My own opinion is, that he might have had strong suspicions that she had committed adultery in India, but those suspicions were removed by her positive assurances; and although she had been guilty of so much levity, yet when in that sacred confidence which ought to subsist between husband and wife she assured him that she had not been guilty of adultery, he was entitled to believe her, and I think he did believe that she had not been guilty of adultery even in India; but even if he did believe that she had been, that can afford her no excuse for her adultery in England. I am satisfied upon the evidence of her own letters that this deed was executed in the belief of the truth of her solemn assurance that not only not in India but during no part of her married life had she been guilty of any impropriety. In the belief of that solemn assurance of her innocence he executed this deed, and upon every principle of this Court I am bound to come to the conclusion that a deed executed under such misrepresentation of facts cannot stand, and certainly can give the party who has been guilty of that misrepresentation no title to come and ask for the assistance of this Court. In my opinion, therefore, upon every ground this motion entirely fails, and must be dismissed with costs. Solicitors-Messrs. Maynard, Son & Co., for plaintiff; Messrs. C. T. Jenkinson & Son, for defendant. A man of loose and drunken habits had for many years lived on friendly terms and in constant communication with his relatives, by whom he was chiefly supported, his only other source of income being the dividends of 1,000l., to which he was entitled for life, and the half-yearly payment of which he regularly demanded so soon as they became due. He was last seen on the 12th of August, 1860, being then in an abject and almost dying condition, and had never since been heard of:-Held, that his non-application for the half-yearly dividend, which became payable in October, 1860, taken in conjunction with the other circumstances of the case, was sufficient evidence to raise the presumption of his death before the 14th of November in that year. This was a petition by the administratrix of Emma Elizabeth Beasney for payment out of court of a sum of 1,000l., which had been paid in under the Trustee Relief Act, and to which the petitioner claimed to be entitled, on the presumption that William Beasney, who had a life interest in the fund, but had not been seen or heard of since the 12th of August, 1860, pre-deceased the said Emma Elizabeth Beasney (his half-sist r), who died on the 14th of November, in that year. The petitioner's affidavit, in support of the petition stated, that William Beasney, her step-son, was a man of loose and drunken habits; that he had from time to time earned a precarious living as a tailor, to which business he had been apprenticed in early life; but that he was chiefly supported by the assistance of the petitioner and other relatives, with whom he lived on affectionate terms; that after he became entitled, in 1857, to the income of the fund in question, he always looked forward to the regular half-yearly payment of the dividends, and punctually applied for the same, squandering the money in drink and dissipation as soon as he received it; that he received his last payment in April, 1860, but that no application was ever made by him, or on his behalf, for the October or any subsequent dividend-(this was corroborated by the production of letters received by the petitioner from the trustee of the fund in answer to her inquiries); that when he was last seen by the petitioner in August of that year, he was in a miserably emaciated and abject condition, poorly clad, and suffering from severe pulmonary disease, and spoke of himself as not expecting to live long; that something was then said by him about going over to New York for his health, and returning in time to receive his October dividend; but that he had no means to enable him to pay for the voyage; that nothing had ever been heard of him since; that inquiries had been from time to time instituted, and particularly in 1867, the petitioner had published advertisements in the Times and other papers offering 10l. for a certificate of his death, or any intelligence respecting him, but without effect. Under these circumstances the Court was asked to presume that his death took place before the 14th of November, 1860, in which event his half-sister Emma Elizabeth became solely entitled to the fund. Mr. G. O. Morgan, for parties entitled in the event of Wiliam Beasney's having survived the 14th of November, 1860.The presumption of law relates only to the fact of death, which we do not dispute ; the particular time must be the subject of distinct proof, and the onus is on the petitioner Thomas v. Thomas, 2 Dr. & Sm. 298. The petitioner's case rests solely on her own testimony, and that is quite insufficient to induce the Court to assume that the death took place either before the October dividend was payable, or within the five weeks intervening between that time and the 14th of November. The period is unreasonably short in the absence of any positive proof. He may have gone over to America and lived on for many months without being heard of. The Court in such a case will adhere to its ordinary rule, and presume death only at the expiration of the seven years. MALINS, V.C. (without calling for a reply), after stating the general rule as laid down by Lord Denman in Doe v. Nepean, and followed by himself in In re Benham's Trusts, continued-The legal presumption of death at the expiration of seven years is adopted for convenience, to enable parties to settle their rights; but thos: who assert that the death took place at any particular time within that period have thrown upon them the burthen of proof, not necessarily positive proof, but that which is considered sufficient proof in the eye of the law, as deduced from the facts in evidence. In this case William Beasney was last seen and heard of on the 12th of August, 1860. The presumption of his death arises now, not on any contest betwe n the parties as to the fact, but as to the particular time of his death, which becomes material by reason of the death of his half-sister on the 14th of November, in that same year, there being no dispute that if she survived him, she took the fund as sole next-of-kin, whereas, if he survived her, other parties became his next-of-kin, and are now entitled. The question therefore is, whether he can be presumed to have died between the 12th of August and the 14th of November, 1860. A case has been cited which recently came before the Master of the Rolls, where an annuitant who had for many years been in the habit of demanding her half-yearly payment of income failed to apply for it after a certain date, and was never afterwards heard of. That was held sufficient to raise the presumption of her having died previously to the next half-yearly day of payment. That appears to me to be a sound principle, and quite applicable to the present case. This young man lived, as it seems, on good terms and in constant communication with his relations up to the 12th of August, 1860, when he was last seen by the petitioner in such a condition that his death might not unreasonably be expected to take place at any hour. There is nothing to impugn her testimony upon this point, and his state of health is sufficiently accounted for by his drunken and dissolute habits of life. Evidently he was then in almost a dying state. But latterly the great event of his life, and that to which he was always looking forward, was the half yearly receipt of the dividend upon this fund He had received his April dividend as usual. How then can we account for his never applying in October except on the supposition that he was dead? Even had he gone to America, he must have borrowed or applied to some of his friends for the means to go, and when there he could easily have communicated with them as to the payment of his dividend. But there is no evidence whatever that he did go, and I cannot presume that which under the circumstances is in the highest degree improbable. The only mode by which his non-appearance and his non-application for his dividend can reasonably be accounted for is, by presuming that he died very shortly after that 12th of August. I feel satisfied that if living he would not have allowed a day to elapse after his dividend became payable; still more so, that he would not have allowed a space of four or five weeks to intervene after that time without making some application for the money. I think, therefore, that the particular circumstances of this case justify the Court in presuming that the death took place, if not actually before the dividend was due in October, at all events before the 14th of November, which is the day upon which the present question turns. This fund then having been limited over upon his death The point raised by this suit was whether or not a trustee is justified, before paying trust funds into court, in deducting therefrom the costs, charges and personal expenses claimed by himself on account of the trust, where a dispute has arisen in respect of the amount of such claim. The defendant, John Curson, had, since the death of his co-trustee in 1858, acted as sole trustee of a fund of 1,065l. 1s. 9d. consols, the income of which was payable to the plaintiffs as tenants for life. never In 1863, Curson, being then seventyfour years of age, was desirous of retiring, and arrangements were made for the appointment of two new trustees. Disputes, however, ensued, and the fund was transferred into their names; Curson insisting upon the execution by his cestuis que trust of a release, to which (as advised by his counsel) he was not strictly entitled, and also claiming the right to retain out of the fund the sum of 561, for his own costs and personal expenses. This demand was resisted by the proposed new trustees on behalf of the plaintiffs, as being excessive, whereupon Curson sold out sufficient stock NEW SERIES, 38.-CHANC. to answer his claim for costs, &c., and paid the balance of the fund into court, under the Trustee Relief Act. In 1866 the plaintiffs filed the present bill for an account of the whole fund, alleging that the amount of costs and expenses claimed by the defendant was excessive, and related to matters other than the payment into court; that he had no right to deduct the sum in dispute, and that the payment into court was vexatious and oppressive. Mr. Bevir, for the plaintiffs. Mr. Phear, for the defendant, contended that the refusal of the plaintiffs to execute the release and the other circumstances of the case justified the payment into court, and that if the plaintiffs were dissatisfied at the sum retained by their trustee for his costs and expenses, their simple remedy was taxation, to which the defendant was willing to submit. MALINS, V.C., in the course of his judg ment, said he wished it to be understood as a general rule that, in his opinion, the proper course for a trustee to pursue under circumstances like the present, where the amount of his claim for costs and expenses was in dispute, was to pay the whole fund into court, leaving it for the Court to award such costs and other expenses as upon inquiry he should be found entitled to. Such inquiry would always properly arise under the petition for payment out of court, upon which the trustee would appear and ask for his costs, &c., but no trustee was entitled to be the absolute assessor of his own costs. In the present case his Honour thought the proceedings vexatious and arbitrary. The defendant having taken the law into his own hands must make good the whole fund as prayed by the bill; then on taking the accounts he would be allowed all proper costs, charges and expenses. The defendant to pay the costs of the suit. Solicitors-Mr. R. H. Peacock, agent for Mr. W. S. Page, Norwich, for plaintiffs; Mr. C. Blake, agent for Messrs. Keith, Blake & Co., Norwich, for defendant. Y A railway company took from A. a small piece of land. On part of this they constructed the embankment of their railway, and over the remainder they made a road for the accommodation of an adjoining owner, the parts of whose land they had severed :— Held, reversing the decision of one of the Vice Chancellors, that they were entitled to make this use of the remainder, and a bill by A. to establish his right of pre-emption was dismissed. Held, also, that if the case had been otherwise as to the company's right of so using the land in question, the plaintiff would not have been defeated, on the ground that the period mentioned in section 127. of the Lands Clauses Consolidation Act had not expired. This was an appeal from the decision of Vice Chancellor Stuart, reported 37 Law J. Rep. (N.s.) Chanc. 74. The facts are fully stated in the former report, and a short summary of them will here suffice. The defendants had purchased compulsorily from the plaintiff a small piece of land forming the corner of a field, the two adjacent sides of which were about equally inclined to their railway. On each of these sides there was land belonging to the trustees of the Clerkenwell Charity, the communication between which was cut off by the line of railway, which crossed a part of the piece taken from the plaintiff. The defendants, in order to restore this communication, and as an accommodation work which they were bound to make for the charity, made a road over part of the land taken from the plaintiff not occupied by their railway; the original plan for which had been slightly altered. The bill was filed for the purpose of requiring the defendants to re-sell the land thus made use of, as being superfluous land not required for the railway. The Vice Chancellor having made a decree in accordance with the prayer of the bill, the defendants appealed. Mr. Bacon and Mr. Stevens, for the appellants.-The company are bound to make accommodation works for the charity trustees; therefore to use the land in question for that purpose is to apply it to the purposes of the railway; consequently the land in no sense is superfluous land. They referred to the discussion in The Earl of Darnley v. the London, The Railways Clauses Act, 1845, ss. 16, Very likely it might be that the land would be wanted for the actual railway, supposing it became necessary to widen the embankment. At all events the bill was premature, as the legislature allows the company ten years before it is obliged to sell superfluous lands. They cited Astley v. the Manchester, &c. Railway Company, 2 De Gex & J. 453; s. c. 27 Law J. Rep. (N.S.) Chanc. 478. The York and North Midland Railway Company v. Milner, 3 Rail. Cas. 773. Rangeley v. the Midland Railway Company, 37 Law J. Rep. (N.s.) Chanc. 313; s. c. Law Rep. 3 Ch. 306. Mr. Walford, for the respondent, the plaintiff, repeated the arguments which had been pressed in the Court below, contending that the case, as regards the right to sue now, was governed by Lord Carrington v. the Wycombe Railway Company, 37 Law J. Rep. (N.S.) Chanc. 213; s. c. Law Rep. 3 Ch. 377. The other cases referred to by him were The Queen v. the Wycombe Railway Company, 36 Law J. Rep. (N.S.) Eversfield v. the Mid Sussex Railway Dodd v. the Salisbury Railway Com- |