The Gazette 1958-61

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

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