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Four men set out on an unlawful poaching escapade,
at 2 a.m.
in January 1967
to shoot deer on Tore
Mountain, near Killarney: about 3 a.m. one deer was
killed, and another wounded. The plaintiff was accid
entally shot by
the defendant, who thought he was
firing at deer.
Held by Murnaghan J.
that the plaintiff and
the
defendant were participators
in
the crime of taking
deer away from land which did not belong to them,
and that the shot which injured the plaintiff was a step
in the execution of the common illegal purpose. The
Courts
cannot consequently entertain
the
plaintiff's
action.
[O'Connor v. McDonnell—unreported—Murnaghan J.
30 June 1970.]
Nuisance
Instead of dismissing "with reluctance" a complaint
of statutory nuisance against a pig farmer for repeatedly
spreading foul smelling pig excrement on a field and
thus interfering with the comfort of inhabitants of houses
near by, justices at Southam, Warwickshire, should have
taken courage and found the complaint proved, Mr.
Justice Ashworth said when giving judgement allowing
an appeal by a chief public health inspector from the
dismissal.
[Peety v. Field. Q.B.D.
The Times,
9 December, 1970.]
Planning
The House of Lords allowed an appeal by Margate
Corporation from the majority decision of the Court of
Appeal on December 11, 1968, that the Lands Tribunal
(Mr. J. S. Daniel, Q.C.), had correctly assessed at £13,500
the compensation to land developers, Devotwill Invest
ments Ltd., of Westgate Kent, consequent on the cor
poration's refusal of planning permission to develop for
residential use 1.35 acres of land fronting on to Canter
bury Road in Birchington, Kent. The reason for the
refusal was that part of the land would be needed to
ease traffic congestion by a projected by-pass not yet
shown on the Kent development plan, which would
traverse the company's land.
[Margate Corporation v. Devotwill Investments Ltd.
House of Lords.
The Times,
12 November, 1970.]
Practice
It was widely supposed that service of writs within
the precincts of the High Court was a nullity but that
impression was incorrect. Mr. Justice Ashworth said in
the Queen's Bench Divisional Court.
[Ex Parte
Brantschen Privy Council.
The Times,
5
December 1970.]
Restrictive Practices
The power of the National Federation of Retail News
agents, Booksellers and Stationers to boycott newspapers
and periodicals was curtailed by the Court's decision
allowing an appeal by the Registrar of Restrictive Trad
ing Agreements.
[In
re National Federation of Retail Newsagents,
Booksellers and Stationers Agreement (No. 3). Court of
Appeal.
The Times,
16 December, 1970.]
His Lordship granted to Hull fish merchants interim
injunctions restraining the implementation of a resolution
passed by the Birmingham Fish, Game and Poultry
Dealers' Association to the effect that fish carried from
Hull to the Birmingham market must be carried by one
particular firm of transporters, and on the footing that
the passing of the resolution would eventually be held
to be unlawful by the Restrictive Practices Court, he
ruled that it constituted an interference with their trade
by unlawful means.
[Brekkes Ltd—Pennywick V.C. v. Cattel and Another.
The Times,
November 12, 1970.]
Sale of Goods
Plaintiff appeals against O'Keeffe P.'s order dismissing
his claim relating to the purchase of a quantity of onion
seed known as "Lyaskouski Bulgarian" seed. He based
his opinion on the fact there was a sale by description,
to wit "Lyaskouski Bulgarian" onion seed, and that
the plaintiff had failed to establish that the goods did
not correspond with the description, or were not merch
antable.
The Supreme Court (O'Dalaigh C.
J., Walsh and
Fitzgerald J. J.) unanimously allowed the appeal. The
Chief Justice, in delivering the judgment of the Court,
pointed out that the horticulturalist plaintiff had been
engaged in onion growing for many years. The types
of onion seed which the plaintiff selected for growing
in 1963 were "Struttgarter" and "Nunhampark" which
would be suitable for the Irish Market, and he ordered
a
ton of these onions from defendants for the 1964
season. The defendants, not being able to supply the
correct quantity, offered to substitute "Lyasouski Bul
garian" for "Struttgarter". The plaintiff was supplied
with a catalogue description of "Lyaskouski" and con
sulted the County Agricultural Adviser and the Agri
cultural Institute, who advised that this seed appeared
to be right for the Irish market. The plaintiff then gave
his order. The seed cropped well, but more than 10%
of it became unsuitable. The President's view that the
plaintiff did not establish that the defendants had failed
to deliver what he had ordered is not a correct view of
the
transaction.
The facts establish
that there was
specifically a sale by reference to the description fur
nished to the plaintiff of the characteristics of "Lyas
kouski". However the goods supplied did not correspond
with the goods ordered. Accordingly Section 14 of the
Sale of Goods Act 1893 which provides that, where
goods are bought by description, there is an implied
condition that the goods are of merchantable quality,
applied, particularly as the defendant seller did deal
in goods of that description. There
is an exemption
clause in defendant's acceptance note which would cover
them against a breach of warranty, but
not
against a
breach of condition. The defendant must pay damages
for this breach. The plaintiffs had claimed £19,930, but,
if no agreement is reached, an inquiry as to damages
will have to be held.
[McDowell v. Shouldicen, unreported — Supreme
Court—31 July 1969.]
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