253 / 338
sum which was apportioned to the settled lands and
to clear costs and incumbrances.
In these circum
stances the purchaser applied, with the support of
the trustees of the settlement, for an order directing
the vendor's solicitor to bring into Court a sum of
£1,045, Part °f tne deposit money, which he had
paid to or applied on behalf of the vendor.
For the applicant, it was argued that the solicitor,
being well aware that the greater part of the property
was settled land and that there were charges affecting
the unsettled land, should not have parted with any
part of the deposit. Part of the moneys so paid out
of the deposit by the solicitor was paid out after the
solicitor had written, on the vendor's instructions,
a letter purporting to rescind the sale, and the
applicant, as an alternative argument, submitted that
at least such part should not have been paid to the
vendor. The applicant relied on Wiggins
v.
Lord 4
Beav. 30 where a similar order was made to that
now sought.
Against this it was submitted that it was well
settled that payment to a person as solicitor to the
vendor, or so described, was payment to him as
agent for the vendor, and that the solicitor so
receiving the deposit was bound to pay it to or as
directed by his principal: Ellis
v.
Goulton (1893)
i Q.B. 350 and Hall
v.
Burnell (1911) 2 Ch. 551 were
relied on to support this argument.
In giving judgement in favour of the applicant
and directing the solicitor to lodge in Court the said
sum of £1,045, Haugh, J. stated that in the circum
stances of this case he had no hesitation in holding
that the solicitor received the deposit as a stakeholder,
particularly in view of the fact that he was aware
that the property for sale included trust property in
which the vendor had only a limited interest.
We suggest that it is advisable for solicitors, in
their own interests, when the vendor is only a
limited owner, to specify that the deposit be paid
to them " as stakeholders ".
Irish L.atv Times,
Vol. 94. p. 104, 3oth April, 1960.
Evidence on commission.
Carmody
v.
de Courcy and Another, a motion
heard before Murnaghan, J., on the 4th March, 1960,
Was unusual in being an application to have evidence
taken on commission which was being contested.
It arose out of an action under the Fatal Injuries
Act, 1956, brought by the widower of a lady who
was killed when the floor of Carmody's Hotel,
Ennis, collapsed in the course of an auction which
was being held there by the defendants, and the
application was brought on behalf of the plaintiff
to have
the plaintiff's own evidence taken on
commission at his home. The application was not
based on any physical incapacity to attend Court on
the plaintiff's part, but on the contention of his own
doctor that, if called on to give evidence bearing on
his wife's death, the emotional upset and depression
from which he was suffering as a result of her death
would be so aggravated as to cause the plaintiff
unnecessary suffering, if indeed he were capable of
giving evidence at all.
The defendant's medical
adviser in his replying affidavits, agreed that the
plaintiff was an emotional type of man who was
suffering from depression consequent on his wife's
death, and who would be somewhat upset by any
reference thereto, but took the view that he was
perfectly capable of travelling to Court and of
giving intelligent evidence of his family circum
stances, if treated with courtesy, more particularly
as, negligence having been admitted by the defend
ants in their defence, there was no likelihood that
evidence would have to be given of the circumstances
of Mrs. Carmody's death. The defendants took the
view that it had not been adequately shown that the
plaintiff was so emotionally disturbed as
to be
unable to give what would be largely formal evidence
in Court and that the damages might be unduly
inflated if counsel for the plaintiff were in a position
to say that his client had been so much disturbed
emotionally by his wife's death as to be unable to
attend Court. Murnaghan, J., pointed out that it was
possible that the damages might also be unduly
inflated if the jury were to see the plaintiff in an
unduly disturbed state, to which counsel for the
defendants replied that that was a risk which his
clients had to take, but that it was a less risk than
that which they would have to take if the jury were
told that the after-effects of the plaintiff wife's death
had disabled the plaintiff from attending Court.
Murnaghan, J., held that there was no real
difference of opinion medically between the two
doctors. It was clear, from both affidavits that the
plaintiff had suffered depression as a result of the
loss of his wife in tragic circumstances and had not
succeeded in overcoming such depression as well as
the average man in his situation would. While it
might be said that having to give evidence of his
family situation ought not to affect the plaintiff
unduly, his Lordship thought that the mere fact of
having to come to Court would bring back to the
plaintiff associations which, to say the least of it,
would be unpleasant and which might aggravate the
plaintiff's disturbed condition. Such a course, in his
Lordship's opinion, should be avoided if possible
and could be avoided by
taking the plaintiff's
evidence on commission at home which, though
distressing for him, would be less distressing than
giving evidence in Court. His Lordship expressed
himself as unable to see how the defendants could be