has come before the Vice-Chancellor Wood, in the case of The Incumbent of Whitfield (a), in which case 1866. Re 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. THES THESE two suits were instituted on behalf of infants 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 first suit, the 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 Cottenham). (b) Jacob, 527. I shall direct the costs of the first suit to be costs in the second, and give the next friend in the first suit liberty to go in and ask to be allowed the conduct of the second suit. 1866. KENYON บ. KENYON. MULLINS v. HUSSEY. Feb. 12. a sale under THIS HIS was a motion to discharge John Parr, a pur- Where, upon chaser under the Court, from his purchase, (it the Court, the having been determined that there was no valid title,) and to have his costs paid by Mr. W. Stephens, a Defendant, to whom the Court had given the conduct of the sale. In 1863, the property was ordered to be sold, and the Defendant Mr. Stephens, who was a mortgagee, was directed to have the conduct of the sale. of The property was sold by auction in the same year, but in 1865 the Chief Clerk certified that a good title could not be made. The Master of the Rolls was a different opinion, but his decision was reversed in December, 1865, by the Lords Justices. Mr. Hobhouse and Mr. Surrage for the purchaser. When a purchaser under the Court is discharged, the rule is, if there be a fund in Court, to direct payment out of such fund; Perkins v. Ede (a). But if there be no fund in Court, the Plaintiff is ordered to pay them, without prejudice to how they are ultimately to be borne; Smith v. Nelson (b); Berry v. Johnson (c). Here, the title turned Held, that the purchaser, on being discharged, was not entitled to his costs as out bad: against a De fendant to whom the conduct of the sale had been committed by the Court. But his rights, as against any fund which might come into Court, were reserved. (a) 16 Bear. 268. Plaintiff (c) 2 Younge & C. (Exch.) 564. 1866. MULLINS V. HUSSEY. Plaintiff has not, as is usual, the conduct of the sale, and he is abroad, and Stephens, who has taken upon himself the conduct of the sale, stands in his place, and in that of an ordinary vendor. He has voluntarily made himself liable to the purchaser. He is also a mortgagee in possession, who having applied for and obtained the conduct of the sale, has sold the estate, without the ability of making a good title to it; he ought to pay the purchaser's costs. I do not at present [The MASTER of the ROLLS. see my way to making this Defendant pay the costs. I think I ought to reserve the costs as against any fund which may come into Court in this suit.] Mr. Jessel and Mr. Rawlinson for Stephens. Every book of practice is against this application. Seton on Decrees (a); Dart on Vendors (b); Sugden on Vendors (c). There is no contract by which the Defendant has rendered himself liable at law, why should the liability be extended in equity? The sale is by the Court, and not by any particular party to the suit. Mr. Beales for the Plaintiff. The MASTER of the ROLLS. I must order the purchaser to be discharged from the purchase, and direct his costs, charges and expenses, properly (a) Page 617 (2nd ed.) (c) Page 107 (14th ed.) properly incurred, occasioned by his bidding for the property, and also his costs of the reference as to title, and of all proceedings consequent thereon (but not including the costs of the appeal to the Lords Justices), and the costs of the application, to be taxed. I must reserve the payment of them, and give him liberty to apply for payment out of any funds that may be paid into Court to the credit of the case, and give him a stop order. 1866. MULLINS v. HUSSEY. Reg. Lib. 1866, B., fol. 330. ΟΝ BRIGHOUSE v. MARGETSON. Feb. 8, 15. an immediate Na motion for an injunction and receiver, the Defend- Upon a moant agreed that the cause should be at once heard, tion for an injunction, the and that a decree should be taken for a dissolution of Defendant the partnership from a given date, and for accounts and consented to inquiries. The Master of the Rolls, thereupon, made decree, but he the decree. It being necessary to have the written consent of the Defendant's solicitor to set down the cause, the Plaintiff applied for it, but after a delay of two days the Defendant's solicitor wrote to the Plaintiff's solicitor to say that the Defendant had since become bankrupt, and that he had no longer power sign the consent. to became bank- written condown the sent to set cause could not be ob tained. The Court made the order for Mr. Jessel, for the Plaintiff, asked that the decree setting down might, notwithstanding, be drawn up. The MASTER of the ROLLS. The decree is that of the Court. I will add, that the the cause and dispensed with the consent. Defendant, |