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1866.

PERCY

v.

PERCY.

to the estate of Susanna Percy in respect of the arrears of the annuity. But he reserved for the consideration of the Court the question whether the 1867. 10s. 3d. was due and payable to her estate.

The question was whether the annuity was payable out of the corpus.

The case was argued by Mr. Stallard, Mr. De Gex and Mr. Hardy.

The MASTER of the ROLLS held, that the legal personal representatives of Susanna Percy were entitled to have the arrears of the annuity of 2001. paid out of the corpus of the residuary personal estate of the testator, and that if such residuary personal estate should not be sufficient, out of the produce of the real estate of the

testator.

NOTE. See the cases in the note to Howarth v. Rothwell, 30 Beav. 519.

1866.

Re LATHROPP'S CHARITY.

THE North Staffordshire Railway Company, which was subject to the provisions of "The Lands Clauses Consolidation Act, 1845," took compulsorily some portion of the land belonging to the charity and paid the purchase-money into Court.

After this, the Court authorized the trustees to improve the supply of water to the town of Uttoxeter and to raise a sufficient sum for that purpose.

The trustees now presented a petition for the payment out of Court of this fund for the purposes sanctioned by the Court, and they asked that the company might pay the costs of the application.

Jan. 20, 22.

The 80th section of the

8 Vict. c. 18

(The Lands
solidation
Act) is to be
construed
liberally.
A railway
company took
lands belong-
ing to a
charity, and
the Court
authorized the

Clauses Con

investment of the purchasewater-works. Held, that the company must pay the costs of a petition for payment

money in

Mr. Wickens in support of the petition. The company, who have taken the land under the powers of the out of the purchaseact, are bound to pay the expenses of obtaining it out money. of Court. Substantially, what is asked is the payment to the rightful owners, and its application is a matter of no importance. The case of Re Oxford, &c., Railway (a), which will be cited, was decided on the authority of Re Buckinghamshire Railway Company (b), but the point has since been before Vice-Chancellor Wood, who has decided, in Re Incumbent of Whitfield (c), that where the purchase-money for the glebe had been laid out in building the parsonage, the costs of obtaining payment

(a) 27 Beav. 571. (b) 14 Jur. 1065.

(c) 1 John. & Hem. 610.

1866.

Re LATHROPP'S CHARITY.

payment ought properly to be borne by the company. He cited Hodges on Railways (a).

Mr. W. J. Bovill for the company. This is an application for payment to the waterworks, and it is not such an investment as is authorized by the 80th section of the act (b), and, therefore, the costs are not payable by the company. The case is governed by Re Buckinghamshire Railway Company (c), followed by Re Oxford, &c., Railway Company (d). The case of Re The Incumbent of Whitfield (e) is inapplicable, for there the application of the money was one authorized by the act, but the act sanctions no investment in waterworks.

Mr. Wickens in reply. This must be treated as an investment. If a sum had been invested in a mortgage, the application for its payment would properly be payable by the company, who have rendered the application necessary. This fund is asked for for the same purpose.

Jan. 22.

The MASTER of the ROLLS.

After examining the cases on this subject, I think that, in this case, according to the act, the company ought to pay the costs of the petition. In the case of The Buckingham Railway Company, the Lord Chancellor held, that a company was not bound to pay the costs of a petition for the investment of the money laid out in the erection of buildings, and I followed that decision in Ex parte Melward (f). Since then, the matter

(a) Page 456 (3rd ed.)

(b) 8 Vict. c. 18.
(c) 14 Jur. 1065.

(d) 27 Beav. 571.

(e) 1 John. & Hem. 610.
(J) 27 Beav. 571.

has

has come before the Vice-Chancellor Wood, in the

1866.

Re

case of The Incumbent of Whitfield (a), in which case

he thought that, under the 80th section of the Lands LATHROPP'S Clauses Consolidation Act (8 Vict. c. 18), the company

was bound to pay the costs.

I have again referred to that act, and I think that the 80th section does apply to this case. I think the section is a remedial one and ought to be construed liberally, and though it may be true, that when much expense is occasioned by an application for leave to lay out the money in the erection of buildings, the company ought not to be called upon to pay the costs, and that there ought to be an apportionment; still, as in fact is the case here, where the petition is little more than an application to pay out the money to persons or a corporation which the Court has declared to be entitled to receive it, in such a case, it must, I think, be considered as partaking of that character and be one which the company must pay for.

In truth, here it is either a payment to the charity or it is an application to have the money invested in certain waterworks. In either case, I think that the railway company must pay the costs of the petition.

(a) 1 John. & Hem. 610.

Reg. Lib. 1866, B., fol. 220.

CHARITY.

1866.

Feb. 8.

Two suits had

been instituted

on behalf of

KENYON by Jones (Next Friend) v. KENYON. KENYON by Jane Kenyon Widow (Next Friend) v. KENYON.

HESE two suits were instituted on behalf of in

THESE

fants for the same purpose. The second suit, infants for the being a friendly one, a decree had been obtained in it before the first could be brought to a hearing.

same purpose,

and a decree

had been ob-
tained in the
second. Upon
motion to
stay the

first suit, the
Court ordered
it to be stayed,
giving liberty

to the next friend in the

second to ap

ply for the

A motion was now made to stay the proceedings in the first suit.

Mr. Selwyn and Mr. C. Roupell in support of the application.

Mr. Jessel and Mr. Shepperd, contrà, asked that conduct of the the next friend in the first suit might be substituted in the suit. Nanney v. Wynn (a); Taylor v. Oldham(b); Belcher v. Belcher (c).

first.

The MASTER of the ROLLS.

I must stop the first suit.

I accede to the argument that it is often for the benefit of an infant, that a suit on his behalf should be conducted by a next friend, not friendly to the Defendant, who is an accounting party. But I should like to know more about this case, which I shall in Chambers. I shall

(a) 2 Jur. (O. S.) 962 (reversed by Lord Cottenhum).

(b) Jacob, 527.
(c) 2 Drew. & Sm. 444.

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