The Gazette 1976

235 / 274

GAZETTE J UNE/JULY 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.
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
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.
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,
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