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a public auction on the instructions of the County
Manager and purchased the property for conversion
into a mental hospital for the sum of £13,000.
The authority for the purchase o f the property by
the local authority is contained in the Mental
Treatment Act, 1945 which incorporates some of
the provisions o f the Land Clauses Acts. Mr.
Justice Kingsmill Moore, on an appeal from the
Taxing Master, decided that Rule 11 of the Solicitors
Remuneration and General Order 1884 applied,
and that the solicitors’ costs should be drawn
under Schedule 2 and not under the scale. The
consideration of the matter was adjourned pending
the receipt of the transcript of the judgment.
(See below.)
PURCHASE BY LOCAL AUTHOR
ITY AT PUBLIC AUCTION
J
u d g m e n t
was delivered recently by Kingsmill
Moore, J., in the case of the Carlow Mental Hospital
Board
v.
Lanigan. This was a review o f taxation
o f the bill of costs of the solicitor who acted for
the Mental Hospital Board in the purchase of
certain lands for the erection o f a mental hospital.
The purchase price was in or about £13,000 and
the Board’s solicitor drew his bill on the basis of
the scale fee under Schedule x, part 1 of the
General Order o f 1884, as amended. The Board
objected to this, on the ground that Rule 1 1 of the
Rules contained in the General Order applied, this
being a “ sale under the Lands Clauses Consolidation
Act or any other private or public Act under which
the vendor’s charges are paid by the purchaser,”
•and that the bill should have been drawn on an
■“ item by item ” basis. The facts were somewhat
unusual, inasmuch as the lands in question were
advertised for auction and the Board, before obtain
ing any official sanction of the Minister, as required
by s. 51 of the Mental Treatment Act, 1945 (No. 19
o f 1943), but after receiving an unofficial communica
tion to the effect that sanction would be forthcoming
for the purchase at not more than a specified figure,
authorised a solicitor to bid for the property.
In fact, the solicitor bought the property immediately
after the auction (which was abortive), at a price
within the permitted figure, and signed a contract
in his own name in trust. The vendor’s costs
were not paid by the Board and no claim for any
such payment was made by the vendor.
The
Taxing Master held that this transaction did not
fall within Rule 1 1 and disallowed the Board’s
objection. Kingsmill Moore, J., however, after
hearing arguments by counsel, upheld the objection.
He was bound, he said, by the decision in In re
Burdekin (1895) 2 Ch. 136 and In re Pembroke
U.D. Council and D. & T. Fitzgerald 50 I.L.T.R.
65 ; (1915) I.I.R . 185, to hold that the rule applied
to the purchasers’ costs as well as to the vendors’,
and that the words of the rule merely indicated th
type or class of Statutes referred to. The Mental
Treatment Act, 1945, by part V II thereof, incor
porated the Lands Clauses Acts, and, with some
regret, he felt bound to over-rule the Taxing Master
and must remit the bill to him for re-taxation on an
item by item basis.
(.Irish Law Times and Solicitors’ Journal.)
N
ote
.
—It is understood that the decision is under
appeal.
WORDING OF ATTESTATION
CLAUSE IN WILL
I
n
the English Probate, Divorce, and Admiralty
Division, Mr. Justice Hodson gave judgment on the
hearing of this summons, wherein the executors and
trustees named in the will and codicil of the deceased,
Mrs. Joan Selby-Bigge, formerly of Hunstanton,
Norfolk, applied for an order “ that a decision of
the registrar on November 30, 1949, deciding that
the attestation clause of the codicil is insufficient,
and requiring under Principal Probate Registry,
rule 4, an affidavit of due execution o f the said
codicil may be reversed, and that the said will and
codical may be directed to be admitted to probate
without the necessity o f filing an affidavit o f due
execution in respect of either the will or the codicil.”
The attestation clause which had been questioned,
and which was used in both the will and codicil
was as follows : “ Signed by the testator in our
presence and attested by us in the presence o f him
and o f each other.” In an affidavit sworn by the
solicitors for the applicant, Mr. Hugh Frederick
Francis Farrer and Sir Walter Leslie Farrer, it was
stated that the form o f attestation clause in question
had to their own knowledge been used by their
firm for nearly 30 years, and that from a search of
the firm’s records it appeared that it had been in
continuous use since 1892. They could find no
record that the attestation clause had ever been
rejected by the Probate Registry as insufficient
until the summer o f 1949, when the ruling that it
was inadequate was accepted under protest. They
said that the firm had custody o f some 800 wills of
persons still living, and that there was a large number
o f other wills deposited elsewhere in which the same
clause appeared.
In January, 1950, the matter came before the
President, who directed that the summons be served
on the Attorney-General so that he might assist
the Court in argument, and the question be argued
in open Court.
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