190 / 266
Passed.
Michael C. H a lp en n y ;
M ichael A . R e g a n ;
Martin S. K eaven y ; Thomas J . Furlong ; Michael
A . O ’C a rro ll; Jam es V . C. P h illip s; D aniel B.
Sullivan ; William J . B . Fallon ; W illiam N ic h o ll;
Frank O ’Mahony ; Walter O ’Donoghue ; Terence
Michael Williams ;
M ichael G . F ogarty ;
Joh n
J . Donohoe ; Cliodna M . Cussen ; Jam es Brendan
O ’Leary ;
Fintan P. Clancy ;
Richard K n ig h t ;
Humphrey P. K e lle h e r; Go rdon A . H enderson ;
Patrick B . K e lly ; Thomas B . Je lle t t ; Patrick C.
P o w e ll; Charles F. C. D ow n in g ; B rian W. R u sse ll;
Peter P. J . Callery ; A lb ert L . O ’Dea.
42 candidates attended ; 31 passed.
Th e Centenary Prize was awarded to D erm ot J .
Moloney.
DECISIONS OF PROFESSIONAL
INTEREST.
The tenant of a flat owing rent, hut claiming damages
fo r the landlord’s breach of a covenant to supply services, in
a communication to the landlord, admitted owing the rent,
and set out the damages she claimed, and enclosed a cheque
fo r the balance. The landlord’s solicitors returned the
cheque and also a banker’s order sent subsequently fo r the
same amount, and in a subsequent action fo r the rent
and a counterclaim fo r damages fought solely on the
counterclaim, the tenant was awarded more than she had
claimedfo r damages in her communication to the landlord,
and the balance then found to be due to the landlord was
less than she had tendered. Was the County Court fudge
right in making an order fo r costs in the action in favour
of the landlord, and an order on the counterclaim in
favour of the tenant, purporting to be bound by the decision
in Chell Engineering Ltd. v. Unit Tool & Engineering
Co. Ltd.
(1950) (1.
A ll E .R .
378). ?
N o , said the Court o f Appeal (Lo rd Goddard,
L .C .J., Denning and Jen kin s, L .J .J .) . The proper-
order was that the tenant should have the costs o f
the action, and as the judge had failed to exercise a
true discretion through considering h im self bound
by a decision which was unapplicable, his decision
would be varied accordingly. Per L o rd Goddard,
L .C .J.— “ I think it would be a reproach to the law
if in the circumstances the plaintiff w ere entitled to
recover substantially all the costs o f this action,
because in fact he could have had his money without
bringing any action at all.
Instead o f accepting
the cheque or banker’s draft, he issued a w r it ;
and after the case had been litigated at the very
considerable expense o f
£50
or
£(50,
he recovered
less than he had been offered before the w rit was
issued. In those circumstances, it seems to me only
fair that the defendant should have the costs o f the
action.
(Childs
v.
Blacker and G ibson (1954) z.
A ll E .R ., 243).
I f a person charged before justices with a summary
offence (i.e., dangerous driving) is entitled to claim to be
tried by a jury, is it sufficient fo r justices merely to ask
the accused whether he wishes to be tried summarily
?
N o , said the Queen’s Bench D ivisional Court
(Lord Goddard, C .J., H ilbery and D onovan , J .J .) .
T h e accused must be informed specifically o f his
right to be tried before a ju ry, and asked whether
he w ishes to be so tried.
Per D onovan J .— “ I f a man has a right to be
tried b y A , he is not told o f that right by being
asked if he wishes to be tried b y B . It is important
that the law should be strictly follow ed in this
respect, though I agree that no particular form o f
words need be used to state or explain the right o f
trial b y ju ry.”
Per L o rd Goddard,
C .J.—
“
I
can see no good
reason why, when the proper question is asked,
the solicitor or counsel in the presence o f his client
cannot answer the question, because the law does
not make it obligatory fo r the defendant to answer.
The defendant must appear him self i f he claims
trial b y a jury, and he can answer himself, but I
can see no reason why his advocate in his presence
cannot answer fo r him. He can, o f course, contradict
his advocate at once, but if he does not, and the
case proceeds b y consent shown by his silence, I
cannot see any difficulty.”
(R .
v.
Salisbury and
Am esbu ry Ju stice s,
ex parte
G reatbatch (1954)
2
A ll
E .R ., 3
z
Q.
By a voluntary settlement dated July
1 , 1907,
a settlor
settled securities on his son fo r life, and subject thereto the
settlement provided fo r the usual power of appointment in
favour of the issue of the life tenant with a gift over to his
children in default of appoint??ient.
The funds settled
comprised a holding of registered shares in an English
company {which carried on its business wholly in Southern
Ireland), and large holdings of bearer securities in American
railway companies, a German Imperial loan, and a
Canadian railway company. The bearer securities were kept
in England.
The settlement was drafted by English
solicitors and its form was that which was common in
England and Ireland. A ll parties executed the settlement
in England. The invest/nent clause permitted {inter alia)
investment in freehold, copyhold, leasehold or chattel real
securities in England or Wales or any British colony
or the United States of America, but did not expressly
permit such investment in Ireland {although such investment
was, in fact, permissible by virtue of the Trustee Act,
1893,
j
.
i
).
Investment was also permitted in stocks or
securities of or guaranteed by the Bank of England or
the Bank of Ireland. The settlor’s domicil of origin was
Irish, but he maintained substantial estates both in
Ireland and in England and spent his time preponderantly
in England. It was not established that he ever acquired
a domicil of choice in England. The life tenant was at all
12