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GAZETTE
DECE
M
BER
1981
that partner but when the property
was "bought for the house" then it
could logically be inferred that it was
to be the joint property of both
partners. Counsel for the wife had put
her claim to the furniture in the
alternative. The purchase of furniture
could not in itself affect the wife's
claim to an interest in the house, but
the subsequent behaviour of the
parties cast light on the kind of
agreement between them to buy and
furnish a home through their joint
efforts.
Barrington J. cited with approval
Lord Denning in
Hazell v. Hazell
[1972] A.E.R. at p. 923, as follows:
"It is sufficient if the contri-
butions made by the wife are
such as to relieve the husband
from expenditure which he would
otherwise have had to bear. By
so doing the wife helps him
indirectly with the mortgage
instalments because he has more
money in his pocket with which
to pay them. It may be that he
strictly does not need her help —
he may have enough money of
his own without it — but
if he
accepts it
(and thus is enabled to
save more of his own money) she
became entitled to a share."
The Court in the instant case
concluded that as the husband had
paid immediately for a three-fifths
interest in the home, the wife's claim
was only in
respect
of the remaining
two-fifths, and that the wife was
entitled to one-half of that namely an
undivided one-fifth share in the
beneficial interest of the equity of
redemption,
together
with
an
undivided one-half share in the house-
hold goods and furniture other than
such items as were personal to one or
other of the parties.
M.B. v.
E
3 . -
High Court (per Barr-
ington J.) - 19 February 1980 -
unreported.
MISTAKE
Money paid under a mistake of law
— Miscalculation of sum needed to
redeem annuity — Overpayment —
Recovery of overpayment where
parties not "in pari delicto".
J.M. was owner in fee simple of a
cottage vested under the Labourers
Acts, subject to a redeemable
annuity. Being desirous of redeem-
ing, he applied to the Defendant
Housing Authority who quoted a
redemption price of £1,163. Subse-
quently the Plaintiff, as personal
representative of J.M. deceased, paid
that sum to the Defendants to redeem
the annuity. The £1,163 was calcu-
lated and paid before July 1974 when
the Supreme Court gave judgment in
the case of
Meade v. Cork Co.
Council
(Supreme Court, 31 July
1974, unreported). According to the
law as laid down in that case, the
redemption price quoted and paid
was £953.53 too much. The Plaintiff
sued for the return of the over-
payment. On a case stated to the
Supreme Court by the Circuit Court
Judge:
Held
(per Griffin J. and per Kenny J.
with O'Higgins C.J. concurring) that:
1. The Defendants were not entitled
to require the Plaintiff to pay the
said sum of £1,163 to redeem
the annuity.
2. The said sum was paid under a-
mistake of law.
3. The Plaintiff was not
in pari
delicto
with the Defendants in
relation to the said mistake and
the overpayment was recover-
able from the Defendants by
action.
The cases of
Dolan v. Neligan
[ 19671
I.R. 247, and
Kiriri Cotton Co. Ltd.
v. Dewani
[1960] 2 W.L.R. 127,
were followed.
Elizabeth Rogers v. Louth Co.
Council
— Supreme Court (per
Griffin J. and per Kenny J. with
O'Higgins CJ. concurring) — 11
March 1981 — unreported.
CRIMINAL LAW
Vagrancy Act, 1824, Section 4
(as
applied to Ireland and amended by
Section 15 of the Prevention of
Crimes Act, 1871, and Section 7 of
the Penal Servitude Act, 1891) —
creating and providing for the offence
commonly known as "loitering with
intent" — inconsistent with the
Constitution.
The Plaintiff was convicted in the
District Court on 13 November
1975 on two charges: (1) that being a
suspected person he was found on 11
November 1975 loitering with intent
to commit a felony, to wit, house-
breaking, contrary to Section 4 of the
Vagrancy Act, 1824; and, (2) that on
the same date he had in his posses-
sion certain housebreaking imple-
ments with intent to commit some
felonious act, to wit, to steal,
contrary to Section 4 of the
Vagrancy Act, 1824. He was con-
victed and sentenced to three months
imprisonment on each of these
charges.
On appeal to the Circuit Court
against sentence on 9 December
1975 the term of imprisonment was
suspended on terms.
On 2 July 1976 the Plaintiff was
convicted in the District Court on a
charge that being a suspected person,
he was found on 17 June 1976 in a
public place loitering with intent to
commit a felony, to wit, steal
contrary to Section 4 of the
Vagrancy Act, 1824, as amended by
the Acts of 1871 and 1891.
He was sentenced to three months
imprisonment, but suspended on
condition that he be of good beha-
viour and keep the peace for twelve
months. No appeal was taken in
respect of that conviction or
suspended sentence.
Section 4 of the Vagrancy Act,
1824, as amended by the Acts of
1871 and 1891, created a large
number of separate and distinct
offences. The Plaintiff, as stated, had
been charged with two separate such
offences.
The Plaintiff sought declaration in
the High Court:
(i) that Section 4 of the Vagrancy
Act, 1824, as amended and
applied to Ireland by the Acts of
1871 and 1891, was not carried
forward as a valid law by Article
50.1 of the Constitution, and,
(ii) that certain convictions in the
District Court were invalid.
The High Court held (per McWilliam
J.) that only the specified part of
Section 4 of the Vagrancy Act, 1824,
as applied to Ireland and amended by
the Acts of 1871 and 1891 creating
and providing for the offence
commonly known as "loitering with
intent" was inconsistent with the
Constitution. Orders of
certiorari
quashing the convictions in the
District and Circuit Court granted.
The Defendants appealed to the
Supreme Court.
Held
(per Henchy J., with Griffin,
Kenny and Parke JJ., concurring,
O'Higgins C.J. dissenting in part):
1. That the specified parts of
Section 4 of the Vagrancy Act,
1824, as applied to Ireland and
amended by the Acts of 1871
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