The Gazette 1976

J UNE /J U LY

GAZETTE

1976

the defendant from prison to the Central Mental Hospital in Dun- drum. The prosecutor, having obtained a conditional order, argued that he was entitled to trial by jury on the question of contempt of Court. This contention is not sustainable by reason of the judgment of Finlay P. in The State (Commins) v. the Governor of Limerick Prison and Judge Fawsitt just delivered. See April, 1976, Gazette, p. 9). It was also contended that, at the time the prosecutor committed these acts of disobedience, and that he refused to be defended by solicitor and counsel in the subsequent pro- ceedings, he was suffering from such a mental disease which prevented him from forming the necessary mens rea and that his mental state prevented him from purging his contempt. On an application of Habeas Corpus, it is not within the jurisdiction of the High Court to consider the merits of the issue tried by the Circuit Court Judge when he made the committal order for con- tempt. A psychiatrist had stated that the prosecutor had suffered for vears from paranoia but neverthe- less his mental condition does not prevent him from understanding the consequences of what he is doing. As a result of the relevant legisla- tion, the purpose of a ministerial order of transfer to a mental insti- tution is not an additional penalty, but is made to ensure that the person requiring treatment in a mental institution should be held there until he has sufficiently re- covered his sanity. If, therefore, the prosecutor is to impugn the validity of his present detention, he can only do so on grounds infringing his constitutional rights. As the prosecutor is not serving a prison sentence, his de- tention in the Central Mental Hos- pital is not dependant on any Court order. Consequently Finlay P. is satisfied that the cause shown by the respondent Governor of the Hospital against the conditional order is good, and that the application for Habeas Corpus must be dismissed.

dant of a contract for sale of licen- sed premises in Monaghan Town. The defendant contends there was an agreement, and that, at the time of the making of the agreement, he was so drunk that he was incapable of contracting, and consequently the agreement made was unfair and unenforceable. The contract relied upon is a verbal agreement supple- mented by a subsequent written agreement to comply with the Irish Statute of Frauds. The defendant further maintains that the written document, in which there is no re- ference to the publican's licence, is not a valid memorandum within the said Statute, and that there has been such a delay in seeking relief on the plaintiff's part, that it would conse- quently be inequitable to enforce the contract. A plaintiff coming into Court seeking equitable relief must be frank and forthright, and must not try to mislead by suppressing evidence. Having heard the evidence of both plaintiff and defendant, Gannon J. stated that, where there were conflicts in the evidence, he would prefer to accept the evidence of the plaintiff. The oral contract was made in the dining room of Hayden's Hotel, Ballinasloe, on the evening of 3rd August, 1972. The defendant finally agreed to the sale of the Public House for £6,000, and the plaintiff took out his cheque book, and asked his secretary to write out a post- dated cheque for 1st September, 1972, when completion was supposed to take place. At the secretary's suggestion, the defendant wrote out a receipt on a piece of paper, pro- duced in evidence. The defendant, who was having dinner with four friends in Hayden's Hotel, had alle- gedly no recollection of seeing the plaintiff, but said he was told by one of his friends, when he awoke on the following morning, 4th August, in the Imperial Hotel, Galway, that he had "sold a pub the night be- fore". He alleged he first saw the cheque when he received it from a receptionist at the Skeffington Arms Hotel, Galway, later that same morning. A witness stated that the defendant had arrived in the hall of the Skeffington Arms Hotel stagger- ing, and mumbling about having sold a pub; the defendant took the cheque out of his pocket, and wit- ness gave it to the receptionist for safe keeping. There is little doubt but that the cheque was in fact written in Hayden's Hotel.

Monaghan. Although at one stage in Ballinasloe the figure of £8,000 was mentioned, the plaintiff alleged that at no time did he offer more than £6,000, which the defendant finally accepted; it was also agreed, after some talk, that this sum would include the furniture of the licensed premises. About 13 th August, 1972, the plaintiff called to see the defendant at his Park Street premises, Mona- ghan, about the title. The defendant contended the price paid was too small, and this was repeated later. On 12th September, 1972, defen- dant told plaintiff to contact Mr. X., * Solicitor, and to give more money. After that, the plaintiff put the matter into the hands of Mr. Y., his own solicitor. There is no doubt on the evidence that a memorandum in writing was made after the agree- ment was signed by the defendant. The plaintiff stated in evidence that he intended to pull down and re-erect the premises, and spend £10,000 on it. The transfer of the licence was not an express term of the agreement, and it was unneces- sary to mention it in the memoran- dum. The cross-examination of the plaintiff in relation to the licence, and the submissions made by the defendant that the terms of the Irish Statute of Frauds appear to have been based on the supposition that the defendant had a special pro- perty in the Seven Day Licence re- lating to the premises in Dublin Street, Monaghan, capable of being sold or withheld independently of the sale of the premises. O'Brien C.J. in Murphy v. Cork Justices— (1893) 2 I.R. 144—has settled the law that there can be no property in a spirit licence in Ireland apart from the premises in which the licensed business is carried on. In other words, the licence cannot be severed from the licensed premises. The defendant claims he was so intoxicated that, at the time the con- tract was made, he was incapable of understanding the nature of the transaction, and that the contract was unfair because the defendant was in an uneven bargaining posi- tion. He alleged that the incident at Hayden's Hotel occurred on the third day of the Galway races, and that he had attended the races each day. By the time he reached Ballina- sloe, he could not remember what he had to eat or drink. The plaintiff said that the defendant was sober, that his voice was normal, and he understood the transaction perfectly. The Court does not give credence to the defendant's story that he had

The State (Heany) v. The Governor of the Central Mental Hospital — Finlay P. — unreported — 19 March, 1976.

VENDOR AND PURCHASER Alleged drunkenness of Vendor in signing a contract of sale of licensed premises not sustained. Alleged low price of sale rejected. The plaintiff's claim is to enforce specific performance by the defen- 14

The plaintiff swore that in July, 1972, he had talked on three separ- ate occasions about the sale of his public house in Dublin Street,