Hale v Bushill
| Jurisdiction | England & Wales |
| Judgment Date | 02 March 1866 |
| Date | 02 March 1866 |
| Court | High Court of Chancery |
English Reports Citation: 55 E.R. 928
ROLLS COURT
S. C. 35 L. J. Ch. 381; 14 L. T. 246; 12 Jur. (N. S.) 243; 14 W. R. 495.
[343] hale v. bushill. March 2, 1866. [S. C. 35 L. J. Ch. 381; 14 L. T. 246; 12 Jur. (N. S.) 243; 14 W. R. 495.] A testator had granted to the Plaintiff the right of pre-emption of an estate which he had previously devised to an infant. The Plaintiff exercised his option after the testator's death and filed his bill against the infant and executor for specific-performance. The Court gave no costs against the Defendants. In 1859 the testator, Mr. Mallalue, granted to the Plaintiff, Hale, a lease of a farm for seven years, with the option of purchasing it within that period. The testator had, in the previous year (1858), devised the farm to the infant Defendant. The testator died in 1861, and in 1864 the Plaintiff exercised his option of purchasing the farm; but, it being vested in an infant, he was compelled to institute this suit to obtain a specific performance and conveyance. Mr. H. Humphreys, for the Plaintiff, argued that the testator's estate was liable to pay the costs of this suit which had been occasioned by his act. He cited Purser v. Darby (4 Kay & J. 1); The Eastern Counties Railway Company v. Tuffnell (3 Railw. Ca. 133); The Midland Railway Company v. Westcomb (11 Sim. 57); In re Weeding',* Estate (4 Jur. (N. S.) 707). Mr. Baggallay, for the infant. This was not an absolute contract for sale, but a mere option to become purchaser. There was no contract to purchase until after the testator's death, when the option was exercised, and the difficulty is accidental and attributable to no one. There should be no costs given on either side. He relied on Banner-man v. Clarke (3 Drew. 632). [344] Mr. Dickinson, for the executor, contended that no costs were payable, there being no real default. Mr. Humphreys, in reply. the master of the rolls [Lord Romilly]. When I...
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