The Gazette 1976

GAZETTE

E/J

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

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formance nor superseded by the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.

(2) £750 for distress and incon-

venience in having to remain over

the winter in an uninhabitable

house.

Murphy v. Quality Homes —

McWilliam J. —unreported —22

June, 1976.

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

that convicted him was composed of

ratepayers and did not contain any

women, and was thus contrary to

the Supreme Court decision in

Burca and Anderson

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