The Gazette 1976

J UN E/J U LY

GAZETTE

1976

the winter in an uninhabitable house. Murphy v. Quality Homes — McWilliam J. —unreported —22 June, 1976.

October, 1975. The settlement pro- vided as follows,—(1) For the sale by the plaintiff to the defendant of the premises for £16,000. (2) That a sum of £4,000 be paid by the de- fendant as a deposit on the exchange of contracts before 20th October, 1975, (3) That the defendant agreed to pay £1,600 towards the costs of the action, (4) That £2,005 lodged in Court be paid out to the plain- tiff. This was done, but the defen- dant did not perform any other part of the settlement agreement. Shortly afterwards, the plaintiff found an alternative house available at £16,000, and entered into a ten- tative agreement to purchase it. As the defendant had not performed the terms of the settlement agree- ment, the plaintiff was unable to make a binding agreement. The plaintiff claims damages in respect of:—(1) loss of the bargain to purchase the new house, and (2) discomfort, inconvenience and dis- tress at having to remain over the winter in an uninhabitable house. The plaintiff cited Capital & Sub- urban Properties v. Swycher, (1976) 2W. L. R. 822 in support. The Cap- ital Properties caes was one in which a vendor, having obtained a decree for Specific Performance, which the purchaser did not carry out, claimed Recission of the con- tract and Damages for breach of the decree. The Court of Appeal (Buck- ley and Orr L.JJ. and Sir John Pennycuick) unanimously held that the purchaser's failure to complete, when time had been made of the essence of the contract was neither waived by the claim for specific per- formance nor superseded by the decree made by die claim. Never- theless the vendor was not entitled to Damages as well as Recission; as he was obliged to elect at the trial whether to repudiate the contract and claim damages, or to affirm the contract and recover the remedies due. The appeal from Foster J. would be allowed. It was held that the principle stated in the Capital Properties case did not apply in this case, as the damages claimed there were Common Law Damages and not Equitable Damages. In a proper case, Lord Cairn's Act provides that a vendor is en- titled to damages as well as specific performance. The following damages were ac- cordingly awarded: — (1) £2,000 for losses due to in- crease in price.

that convicted him was composed of ratepayers and did not contain any women, and was thus contrary to the Supreme Court decision in De Burca and Anderson v. the Attor- ney General, 12th December, 1975. During the empanelling of the jury at the trial, the accused did not ob- ject to its composition. It is said that the right to trial by jury conferred by Art. 38 of the Constitution is an inalienable right conferred not only on an accused person for his protection when he faces an indictable charge, which he cannot apparently waive, but that this right is conferred also on soc- iety at large. This contention is re- jected as the right to trial by jury conferred by Art. 38 is manifestly a privilege accorded to a person charged with an offence. It is not derived from any concept of the human personality, nor from any principle antecedent to or superior to positive law. This does not ap- pear to be a right vested in the com- munity generally. As the prosecutor was capable of waiving any objection to the jury selected in his case, which he ap- parently did, there was no duty laid upon the trial Judge in the course of the trial to discharge the jury, upon the ground that a decision de- livered by the Supreme Court be- tween the accused's arraignment and the time of the verdict of the jury had declared the provisions of the Juries Act 1927 to be inconsistent with the Constitution. Although the question of the re- troactive effect of decisions with re- gard to the constitutionality of the laws were argued at length by coun- sel, no decision was taken on this matter by the Court. The cause shown will consequent- ly be allowed, and the conditional Order of Habeas Corpus will be dis- allowed. The People (Michael Byrne) v. Governor of Monntjoy Prison — High Court —Divisional Court — (Finlay P., Murnaghan and Mc- Mahon JJ.) per Finlay P. —Unre- ported — 17th July, 1976. LICENSING Refusal to grant license In shop- ping centre, on the ground that there are too many licensed pre- mises In the neighbourhood. The applicant, is a nominee of North-East Development Ltd., who

GUARDIANSHIP OF INFANTS

Mother awarded custody of daughter of 6, and son of 3, in view of their age. Application by husband for cus- tody of his daughter Hanna, aged 6, and his son, Michael, aged 3. The husband plaintiff and wife defendant were married in August, 1968, and both reside in the same house in Blackrock, Co. Dublin, despite the fact that the marriage has irretriev- ably broken down. The paramount consideration, as defined in S. 3 of the Guardianship of Infants Act, is the religious and moral intellectual, physical and social welfare of the infants. The defendant's suggestion that there was any impropriety be- tween the plaintiff and named women is rejected. It was held that both plaintiff and defendant were equally suitable to look after the children but, in view of their ten- der years, custody should be award- ed to the defendant mother. Sub- missions will be heard in regard to the plaintiff's access to his children. CD v. CD —Hamilton J. —un- reported — 17th June, *976. HABEAS CORPUS Habeas Corpus refused on ground that jury convicting ac- cused consisted of ratepayers and did not contain women. The prosecutor was charged in Dublin Circuit Criminal Court with larceny and receiving. The trial last- ed three days, and on 17th Decem- ber, 1975, the accused was found guilty of receiving stolen property, and was sentenced to seven years penal servitude. An appeal to the Court of Criminal Appeal was dis- missed. The accused then applied for a conditional order of Habeas Cor- pus, on the ground that the jury

(2) £750 for distress and incon- venience in having to remain over

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