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STATUTE - continued
Interpretation
Office holder - Statutory powers -
Expiration of office - Whether power* «till
exercisable - Chairman of Dafl Eireann after
dissolution of Dail - Electoral Act, 1963, s.
13 - (19/78 - Supreme Court - 11/5/78).
Loftus v. The Attorney General.
Interpretation
Repeal - Unlawful gaming - Definition of
unlawful gaming including reference to s. 10
of Act - Repeal of s. 10 - Effect of repeal on
definition - Promotion of unlawful gaming —
(1978 No. 35 SS - Costello J. - 10/3/78).
DFJ*. (Broderick)
v.
Flanagan.
Interpretation
"United Kingdom" - Adaption of enact-
ments - Refers to Great Britain and Republic
of Ireland - Adaptation of Enactments Act,
1923, s. 3 - Larceny Act, 1916, s. 33 -
(150/77 - Supreme Court - 27/1/78).
The State (Gllsenan) v. McMorrow.
Statutory Duty
Breach - Failure to fence burial ground —
Trespassing cattle poisoned by defendant's
yew tree - Defendant's statutory obligation
not imposed for benefit of adjoining
landowner - No cause of action -(1976 No.
2535P - Gannon J. - 23/1/78).
Walsh v. Kilkenny County Council.
SUCCESSION
Testator
Moral Duty - Breach - Part of estate
allocated by court to children — Allocation to
be held on discretionary trusts for benefit of
children - Succession Act, 1965, s. 177 -
(1977 No. 346 Sp - Costello J. - 27/7/78).
L.
v.
Bank of Ireland.
SUPREME COURT
Appeal
Facts - Assessment - Trial by judge with-
out jury - Judge's finding of fact based on
choice between conflicting oral testimony of
witnesses—Distinctionbetween'flndings offset
by trial judge and inferences of fact drawn by
him from facts proved or admitted — (204/77
- Supreme Court - 21/7/78).
Northern Bank Finance v. Charlton.
Appeal
Stare decisis - Earlier decision of Supreme
Court decided per incuriam — Decision not a
binding authority — Principle of stare decisis
not involved in departure from earlier decision
- (205/77 - Supreme Court - 14/11/78).
The State (Harkin)
v.
O'Malley.
TRADE MARK
Disuse
Removal from register — Whether any bona
fide use of mark — Use resumed by
proprietor shortly before defendant's
application for removal of mark — Resumed
user held to be bonafide - Claim for removal
dismissed - (1977 No. 4662P - McWilliam
J. - 1/6/78).
Beecham Group Ltd. v. GoodaUs Ltd.
* * '
- - -•*
imimcmiiii
"Trex" - Cooking fats - Plaintiff's
registered mark - Defendant using "Pastrex"
for cooking fats - Likelihood of deception
and confusion - Plaintiff's mark infringed -
(1977 No. 5715P - McWilliam J. - 3/7/78).
Industrie Buitoni Perugiana v. O'Mahoney
Ltd.
Registration
"Arby's" - Intention to use mark - Whether
any genuine intention existing at date of
application — Part A, class 29 — Intention
proved in High Court on appeal from Con-
troller - (1976 No. 333 Sp - Hamilton J. -
3/2/78).
Arby's Inc.
v.
Controller of Parents etc.
Registration
"Dent" - Surname - Class 14, clocks and
watches - Whether proposed mark adapted
to distinguish or capable of distinguishing —
Refusal by Controller to register either in Part
A or in Part B of register - Decision of
Controller upheld in High Court - Trade
Marks Act, 1963, ss. 17, 18 - (1978 No.
217 Sp. - McWilliam J. - 10/10/78).
A. Dent A Co. Ltd., Controller of Patents.
Registration
Device - Crocodile - Class 25 - Clothing
including shoes — Not adapted to distinguish
or capable of distinguishing — Device likely to
deceive - Trade Marks Act, 1963, ss. 17-19
- (163/76 - Supreme Court - 27/1/78).
Chemise Lacoste
v.
Controller of Patents.
Registration
"Master Charge" - Bank credit card - Mark
intended to be placed on credit cards - No
intention of applicant to use cards in course of
trade - Mark not registrable - Semble:
applicant's interest in pending application not
assignable - Trade Marks Act, 1963, ss. 2,
17. - (1975 No. 126 Sp - Parke J. -
1/3/78).
Western States Bank Card v. Controller of
Patents.
TRADE UNION
Resolutions
Notice - Introduction of maximum age for
dockers - Union wishing to obtain a decision
of members approving retirement at 65 years
with pension rights - Scheme affecting
plaintiff's continued employment — Plaintiff
unaware that subject would be raised and
decided at meeting of Union members -
Decision invalid - (1976 No. 5632P -
Finlay P. - 15/3/78).
Rodgers
v.
Irish Transport A General
Workers Union.
TRIBUNAL
Natural justice
Impartiality - Compulsory acquisition of
land - Provisional list of lands to be acquired
- List based on certificate of two lay com-
missioners - Objection of landowner -
Appeal to two other lay commissioners —
Disagreement between the two appeal com-
missioners — Proposal to relist appeal before
the two original appeal commissioners and
the commissioner who signed the grounding
certificate - Proposed addition of third
commissioner no breach of natural justice —
Prohibition refused - (1977 No. 477 SS -
Doyle J. - 12/6/78).
The State (Curran)
v.
Irish Land
Commission.
TRUSTS
Creation
Court - Discretionary trust - Allocation of
part of testator's estate for benefit of his
children - Allocation to be held on
discretionary trusts — Successtion Act, 1965,
s. 117 - (1977 No. 346 Sp - Costello J. -
27/7/78).
L. v. Bank of Ireland.
Creation
Voluntary grant - Mother to son-in-law —
Presumption of resulting trust - Evidence
rebutting presumption - House bought by
mother and vested in daughter and son-in-law
jointly - Moiety vested in son-in-law - (1977
No. 500 Sp - Finlay P. - 25/7/78).
Belopopsky v. Belopopsky.
Creation
Will - Bequest - "It is my wish ..." -
Precatory trust - No binding legal obligation
- (1977 No. 122 Sp - McWilliam J. -
25/4/78).
Porter v, Fay.
Lands
Gifts —Alienation inter vivos — Evidence
establishing donor's intention to give land to
donee without payment - Donee not refusing
gift but leaving land shortly after date of con-
veyance — Subsequent gift of money by
donor to donee for purpose of acquiring
house elsewhere —Donor devising land to
third party - Donee declared trustee of land
for benefit of estate of donor - (1976 No.
5236P - McWilliam J. - 14/3/78).
Kiernan v. O'Flynn.
WILL
Construction
Bequest - Gift to four persons nominatim
and "in the event of their death" to their
children — "Death" construed as death in life-
time of testator - Condition that three
legatees do not claim their shares during life-
time of fourth legatee - Fourth legatee to
have life estate with remainder to four
legatees - (1977 No. 122 Sp - McWilliam J.
- 25/4/78).
Porter v. Fay.
Construction
Extrinsic evidence — Phrase in dispute hav-
ing clear meaning - Extrinsic evidence avail-
able to raise doubt as to intention of testator
in using phrase — Extrinsic evidence not
admissible - Succession Act, 1965, s. 90 —
(162/75 - Supreme Court - 20/1/78).
Rowe v. Law.
Construction
Legacy - Initial bequest of pecuniary legacy
followed by devise and bequest of all property
to tenant for life with remainder to named
beneficiaries - Dispositions then followed by
disputed pecuniary legacy to plaintiff -
Payment of plaintiffs legacy not postponed to
death of tenant for life - (1976 No. 547 Sp -
Costello J. - 22/7/78).
Taaffe v. Taaffe.
Testator
Moral duty - Testator's children - Children
deprived - Handicapped child - Breach of
duty by testator - Part of estate allocated by
court to children - Court directing that
allocation be held on discretionary trusts for
benefit of children - Succession Act, 1965, s.
117 - (1977 No. 346 Sp - Costello J. -
27/7/78).
L.
v.
Bank of Ireland.
Testator
Moral duty - Testatrix leaving three sons -
Two
sons
having
onerous family
responsibilities - Third son having lived with
testatrix in family home and having helped to
maintain it - Third son due to retire soon and
having no other residence - Small pecuniary
legacy bequeathed to each of married sons —
Residue of estate bequeathed to cancer
research - Failure in moral duty - Life
interest in family home to third son with
remainder to his two brothers - (1978 No.
250 Sp - Costello J. - 8/11/78).
McGarry v. Byrne.
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