The Gazette 1949-1952

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. 3