187 / 328
the case had not been proved. The justices, after
hearing his argument, dismissed the information.
Although there was a dispute as to the words
used by the chairman when he first announced the
decision, it was clear that, whatever the version was,
he intended and was understood to find that the case
had been proved and the fine would be £3,
It was clear from the authorities that there could
be a complete and effective conviction although it
had not been entered in the register. Counsel for the
defendant, while admitting that principle, argued
that it did not follow that justices were/#«<r/#j-
officio
when they had announced their decision. It was his
submission that, before passing from the case or
dispersing, the justices could change their minds and
substitute either an acquittal or a conviction.
Reliance was placed,
inter alia,
on Warne
v.
Martin
((1954) Crim. L.R. 936) where the justices expressed
the view that they would have changed their minds
if it had been in their power to do so. The appeal
was allowed by this Court and the case sent back for
conviction.
The shorthand writer had read the
transcript of the short judgment of Lord Goddard,
the Lord Chief Justice, in that case from which it
appeared that no cases had been cited in argument.
That case, therefore, was decided
per incuriam.
There
was no doubt that the justices were
functus officio
when they announced their decision. Therefore the
orders of
certiorari
and
mandamus
would be granted.
(Regina
v.
Essex Justices—
Exparfe
Final,
The Times,
November 8th, 1962.)
Payment from High Court Funds to Judgment Debtor in
Circuit Court.
In
Re O'Grady-Wallis v. O'Grady—
(1941)
Irish
Jurist
at page 60, Gavan Duffy J. had suggested that
in a proper case, the High Court will upon an applica
tion made on notice to the judgment debtor, order
payment to a receiver by way of equitable execution
appointed by the Circuit Court, of a sufficient sum
out of funds in the High Court belonging to the
judgment debtor, to
satisfy
the Circuit Court
judgment and the costs properly incurred.
A recent application ot this suggestion was made
by the President of the High Court, Mr. Justice
Davitt, on 6th November, 1962, in the case of
Kennedy v. Spencer.
In that case, a judgment had been
obtained in the Circuit Court in Clonmel in the case
of Margaret Hogan and John Maher as personal
representatives of Jeremiah Hogan deceased against
Cornelius Kennedy for £140
45.
6d. inclusive of
costs. An order was obtained in the Clonmel Circuit
Court appointing the said John Maher receiver by
way of Equitable Execution over so much of the
funds standing to the credit of this action in the
High Court as would suffice to satisfy the said
Circuit Court Judgment.
The Plaintiff Kennedy
did not appear, but it was stated that there was a sum
of £8 61 standing to his credit in the High Court.
The learned President accordingly ordered that the
Accountant should pay to the defendant John Maher
by way of Equitable Execution of the said funds
standing to the credit of this action the sum of
£153 175. 6d. to be applied by him in satisfaction
of the said judgment, and the sum of £3 33. od.
costs awarded to the Plaintiff by the Circuit Court
on ist November 1962, and the further costs of
10 guineas on the application.
Estate Agent's Commission on a Sale proving abortive.
The Court of Appeal in England has recently held
that an estate agent is not entitled
to recover
commission from his client, the vendor, where a
sale has fallen through.
The owners of a caf6 business, who carried on
business
in
leasehold premises,
instructed
the
defendant estate agents to find a purchaser for it.
The vendors signed a printed form containing
particulars of the business by which they appointed
the defendants to be their agents and instructed
them to do their " utmost to introduce to us a
person willing and able to purchase the business,
upon the terms overleaf." The form then stated
between brackets, " Commission 10 per cent.,
minimum £50."
Overleaf it was provided as
follows :
" Terms :
(the estate agents) will do its
utmost to introduce to us as vendors a person willing
and able to purchase the business described overleaf,
upon the following terms :
(i) (the estate agent's)
commission of 10 per cent, on the agreed price,
subject to a minimum of £50, will be payable in any
of the following events :—
(a)
If a sale results to a
person introduced to the vendor by (the estate
agents),
(b)
If a prospective purchaser introduced
as aforesaid signs a binding contract for sale,
(i)
If
(the estate agents), or solicitors for either vendor
or purchaser, receive a deposit on the agreed price
from a person willing and able to purchase the
business, who has made a firm offer at the agreed
price,
(d)
If (the estate agents), or solicitors for either
vendor or purchaser, receive a deposit on the agreed
price from a person who does not withdraw the
deposit within a period of 30 days from the actual
date of deposit."
The agents found a purchaser who paid to them
a deposit of £90 on the basis of the agreed price of
£900.
The purchaser duly signed a contract to
purchase
the property which
incorporated
the
National Conditions of Sale. Ultimately the lessor,
whose consent was required to the assignment of
the lease to the purchaser, refused his consent on
the ground that the intending purchaser's financial