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After a six-day hearing, a jury was unable to agree
whether the wife petitioner was entitled to a judicial
separation, or divorce
a mensa et thoro.
The wife
applied for costs of this abortive trial against the defen-
dant husband. Murnaghan J., having reviewed in detail
the rules of court and the case law on the subject,
found there was nor eported decision on this matter in
Ireland. However it was held that the judge had juris-
diction to order the husband to pay the costs of the
abortive action. The fact that the petitioner asked for
a jury—and consequently laid herself open to an abor-
tive result—should not disentitle her from costs. Accord-
ingly these costs, when taxed, should be paid by the
respondent husband.
Note
—The defendant husband has since died.
[Bradley v Bradley; Murnaghan J.; unreported; 11th
January 1971.]
Custom
Custom of fishermen was to land their boats at "The
Crook", at the mouth of the Boyne, near Mornington,
Co. Meath. These fishermen have fished for centuries
for salmon and mussels in the river. Until 1968, "The
Crook" was waste land, from which there could only be
access from the south. The defendants purchased seven
acres at the northern end of "The Crook" in order to
build a fishmeal factory. Plaintiffs claimed that by
right of immemorial custom, they had a right to dry
their nets and to beach their boats; this had happened
since 1906, and probably for centuries before. This
practice of beaching ships was open and done as of
right.
If the practice had existed during living memory it
raises the presumption that the custom has existed since
before 1189. This custom is of benefit to the village of
Mornington, though doubtless unreasonable to the
defendants in wishing to build their factory. The fac-
tory built by the defendants has deprived the plaintiffs
of their effective use of the customary strip of land.
The three plaintiffs, on the basis that they have been
wholly and permanently deprived of their customary
rights, *»re each entitled to £624 damages.
[Felix, Patrick and Vincent Mullen v Irish Fishmeal
Co. Ltd. and Sam Henry and Partners; Kenny J.;
unreported; 9th November 1970.]
Death Duties
The father of defendants acquired licensed premises in
Pearse Street, Dublin, in 1922. From 1945, the defen-
dants, his two sons, were working with him. One of the
defendants, Thomas, was getting married in 1960 and
asked his father to make provision for him. which the
father agreed to do. They went to a Dublin solicitor,
who was not aware that a saving in estate duty could
be effected by a transfer made in consideration of mar-
riage, but this solicitor was aware of the delays which a
voluntary transfer would experience in the stamp office.
The solicitor advised the father to sell the premises to
the two sons for £16,000 and a deed of assignment
was duly executed in May 1961; this duly transferred
the premises and the liquor licence to his sons and him-
self as joint tenants. Although stamp dutv of £160 was
duly paid in July 1961 none of the £16,000 was ever
paid, nor was it expected to be paid. They claimed that
£10,666 (two-thirds) was an asset of the father liable
for estate duty. The solicitor, who died in 1967. made a
declaration that the £16,000 was never demanded by
the father. It was obvious that evidence could be given
that despite the receipt, no consideration was ever paid.
It was contended that the sons, if sued by the father,
could have successfully counterclaimed for rectification
of the deed, by deleting references to the purchase
price. But, in the unreported case of
Lowndes v Dc
Courcy
(1960), the Supreme Court held, that, in the
absence of mistake or fraud, a deed cannot be rectified
because it has consequences which the parties did not
foresee, if the transaction which they intended finds
expression in the document which it is sought to
rectify.
Kenny J. claimed that the sons would succeed in an
action against the father on the basis of a "promissory
estoppel", by which the father would be estopped from
claiming any part of the purchase money. Having cited
Denning J.'s decisions in the
High Trees
case (1947),
and in
Combe v Combe
(1951) and Lord Hodson's
remarks in
Ayayi v Briscoe
(1964) 3 A.E.L.R. 556,
Kenny J. held that the doctrine of promissory estoppel
related to existing contractual rights if they come into
existence under a contract to be entered into which
cannot be enforced. It was clear that the father repre-
sented to the sons that he would never seek payment of
any of the £16,000. The assumption of the legal lia-
bility created by the deed was sufficient to raise the
presumption against the parent. Kenny J. therefore
held that the revenue claim for death duties failed,
because the father would not have got judgment against
the sons for any part of the purchase price, if he had
sued them for it.
[Revenue Commissioners v Moroney; Kenny J.;
unreported; 11th January 1971.]
Limitation
Infant, who was seventeen at time of accident on 17th
September 1965, was a passenger in the vehicle of his
employers, and this vehicle was in collision with the
defendant's vehicle, whereby he sustained injuries. The
plaintiff was paid and accepted workmen's compen-
sation in respect of this accident. The plaintiff also
wished to avail of his right to bring civil proceedings
against the defendant. The defendant pleaded on a
preliminary point that the claim of the plaintiff was
statute-barred by virtue of Section 7 of the Workmen's
Compensation (Amendment) Act, 1953, which limited
the institution of proceedings for damages to twelve
months after date of accident, or, if substantial grounds
were shown for delay, within two years. The plaintiff
in reply pleaded that he was an infant at the time of
the accident, and that consequently these statutory
limitations did not apply to him. The Supreme Court
in
Connell v Mclnerney
(1957) unreported, had held
that the acceptance of compensation rather than pur-
suing a common law action was not to the benefit of
the infant. But this did not determine the question
whether it was to the benefit of the infant to accept
compensation rather than pursue the common law
action.
O'Keeffe P. said there was much to be said on each
side, bilt on the whole he came to the conclusion that
the plaintiffs claim for damages was statute-barred.
[Hickey v Electricity Supply Board; O'Keeffe P.;
unreported; 4th February 1971.]
Matrimonial
Nullity suit by petitioner husband claiming marriage
void by reason of fraud and duress. Wife before mar-
riage alleged intercourse took place on two occasions
and was thereby rendered pregnant; petitioner denied
this. Wife threatened petitioner that, if he did not
marry her, she would tell his parents and others that
she was pregnant, and thus induced him to get married
to her. which he did on 27th September 1962. This
marriage was never consummated. However, the wife
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