The Gazette 1955-58

The defendant must, of course have his costs out of the estate as executor's costs. (Mulligan v. McKeown—(1955) I.R. 112.) -B/7/ of costs. Signature where solicitor practises under a business name. The plaintiff, a solicitor practising alone under a business name, delivered to the defendant a bill of costs signed in the business name. In proceedings for recovery of the costs it was pleaded inter aHa that the plaintiff had not delivered to the defendant a bill of costs subscribed with the proper hand of the plaintiff as required by the Solicitors (Ireland) Act, 1849 (12 and 13 Vie. C. 53), Section 2. The Circuit Judge held that the Bill was not properly signed and dismissed the action and an appeal was taken to the High Court on Circuit. In the course of his judgment allowing the appeal, Haugh, J., said : The plaintiff, William L. Carroll, is a solicitor carry ing on business alone under the name of Carroll & McKenna. The bill of costs was signed Carroll & McKenna, and it was objected on behalf of the defendant that such signature was not sufficient to comply with the provisions of the Solicitors Act, and that Mr. Carroll should have put his signature at the foot of the bill. The point has never been decided in Ireland, but there is a decision of the English Court of Appeal (Goodman v. Eban, 1954 —L.Q.B. 550), in which it was decided that such a signature was sufficient to comply with the English Act, the Solicitors Act, 1932 (22-23 George V., C. 57, S. 65). The phrasing of the relevant section is different in the two Acts, but I find that in sub stance the relevant provisions as to the required signature of a solicitor's bill of costs are the same. I propose to follow the decision of the Court of Appeal in England and accordingly I will allow the appeal with costs. In the event of this case being reported I would like to add that I think as a matter of prudence a solicitor practising alone under a firm name should sign in his own name for and on behalf of the firm name. (Carroll v. Ryan, 91 I.L.T.R. 194.) Exemption from rates—advancement of profession. The Royal College of Nursing in England claimed to be entitled to a rating relief under Section 8 of the Rating Act, 195.5, in respect of their premises on the ground that their main objects were charitable. The main objects of the College were (a) to promote the science and the art of nursing and the better education and training of nurses and their efficiency in the profession of nursing ; (b) to promote the advancement of nursing as a profession in all or any of its branches. It was admitted by the local authority that the objects in (a) are charitable.

plaintiff condemned in costs. As an alternative, he asked that the plaintiff pay towards the defendant's costs the sum of £i 50 lodged in Court; alternatively, he asked that the plaintiff be ordered to bear his own costs. The plaintiff, on the other hand, applied for an order for the payment of his costs out of the estate. If this had been a case of opposition by the testator's brother to probate of the will propounded by the executor I should have no hesitation in saying that in my opinion the testator's own conduct, viz., the state of his health a fortnight before the will was made and three weeks after its execution, coupled with the subsequent history of his illness, was to be considered the cause of the litigation which occurred after his death as to the validity of his will. Moreover, the medical evidence given on behalf of the plaintiff went further than deposing to the testator's condition some time before and some time after the execution of the will; the opinion was offered that the testator's condition of insanity had probably not changed very much in the meantime. Is this case, then, different from a case of un successful opposition to probate ? I am not satisfied that it is. When the plaintiff acquiesced in a grant of probate in common form his own information about the condition of the testator's health was what he had been told in the letter of the 5 th February 1951. That letter did not inform him that Dr. O'Regan, a fortnight before the will was made, had reached the conclusion that the testator was certi- fiably insane. Moreover, the plaintiff was resident in the United States. In these circumstances and in view of the prin ciples as I find them stated in the cases which I have referred to, I think it is proper that the plaintiff should have his costs out of the estate. In reaching this conclusion I am fortified by the course which Gibson, J., indicated he was prepared to take in Smith v. M'Cashin—32. I.L.T.R. (1898), 55. The plaintiff has, however, already received by way of distribution of his share of the residue a sum stated by counsel to be approximately £326. He must repay this money to the executor as a condition of the payment of his costs out of the estate. The sum of £150 lodged in Court by the plaintiff by way of security for the defendant's costs must be paid out to the plaintiff. It is money paid into Court for a specific purpose ; and, much as I might desire that it should reach the hands of the executor in part-repayment of the plaintiff's share of the residue, I do not think I have any power to deal in that way with the money lodged in Court as security for costs.