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APRIL, 1919]
The Gazette of the Incorporated Law Society of Ireland.
63
clearly payable subject to the income tax,
and the over-payments having been made
under a mistake of law, same were not
recoverable as such by the trustees.
In practice it is sometimes difficult to
distinguish whether a payment has been
made under mistake of fact or under mistake
in law. For instance, in this case, suppose
that the deed of covenant was not acceptable
to the trustees, and that in its absence,
guided by the practice of the testator, the
trustees assumed that the deed provided for
payment, not subject to, but free from,
income tax, would the same decision have
been given ?
Maliciotts Injuries.
Destruction of, or injury to, farm imple
ments and machinery has recently been an
accompaniment to the unsatisfied claim for
increased wage of the agricultural labourer,
the damage thereby entailed on the employer
often exceeds far the cost of repair or of
renewal.
From injury to a tractor or a
reaper and binder in a district remote from
any industrial centre serious loss may ensue
from the delay thereby caused in farming
operations at a critical time.
The judgment of the Court of Appeal
(Ireland) in
Noblett v. Leilrim County Council
(Irish Law Times Reports, Vol. 53, p. 25) is,
therefore, timely and important, establishing
as it does that on proof of a claim founded on
such injury, if malicious, the amount to be
awarded should include all damages conse
quent on the injury.
In
Joseph Rank, Limited
v.
Craig
(Law
Times Report, Vol. 119, p. 751) the decision
of the Lords Justices of Appeal intimates
that caution should be exercised before an
owner
institutes proceedings
to prevent
dumping of rubbish upon his land.
This
cause of complaint is frequently experienced
on town lots in course of development as
building sites. Even in Dublin owners have
not been exempt from this wrong, notwith
standing ample dumping ground provided av
Ballybough by
the Dublin Corporation :
parum locuples continenle ripa.
Naturally
one
is
inclined
to
institute proceedings
against the owner of the rubbish whose
servants or employees have made the deposit ;
but before proceeding inquiry should be made
to ascertain whether this has been done with
the concurrence, express or implied, of the
employer or contrary to his instructions.
In
the
latter
event, as
above mentioned
report shows, an action against him cannot
succeed.
If credence be given to the Greengrocer,
and to the Chancellor of the Exchequer,
apples just now are dear and the monetary
equivalent
is
scarce ;
hence,
if
your
neighbour's apple trees overhang your land,
in exercising what may be your indubitable
right of lopping the trespassing boughs you
may
experience
temptation
of
unusual
cogency to retain the apples thereon for your
own consumption. Before yielding to this
temptation it would be well to read
Mills
v.
Brooker
(Times Law Reports, Vol. 35, p. 261).
The reference will teach you that retention
constitutes you a gratuitous bailee with all
the undefined responsibility incident to such
bailment, and that consumption of the apples
may entail upon you payment in the way of
damages far beyond the extortion of the
greengrocer.
Calendar of the Incorporated Law
Society,
1919.
E
Society's Calendar and Law
Directory for 1919 can be obtained
in the Secretary's Office, price 4s., or by
post 4s- 6d.
ALL communications connected with THE
GAZETTE (other than advertisements) should
be addressed to the Secretary of the Society,
Solicitors' Buildings, Four Courts, Dublin,