The Gazette 1958-61

Educational Co. of Ireland v. Fits^patrick—%th April, 1960. Granting of interlocutory injunction by Teevan, J. affirmed by Supreme Court (Lavery, KingsmiU- Moor, O'Dalaigh and Maguire, JJ. Maguire, C.J. dissenting). This injunction restrains the defendant from picket ing plaintiff's premises until substantial questions of law are decided in the plenary action :— (1) Whether "White v. Riley " (1921. i Ch. i) and similar English decisions are valid decisions in Ireland. Here it was held that the mere statement to an employer by a number of workmen that they will not work with another workman, and that, if that workman is retained in the employer's service, they will strike, even where they have knowledge that he cannot dispense with their service, does not, of itself constitute an unlawful threat, and is there fore not of itself, actionable; but it is a trade dispute, and is, in the absence of threats, protected by section 3 of Trade Dispute Act, 1906. (2) Whether some sections of the Trade Disputes Act, 1906 are in accordance with the Irish Constitu tion of 1937. has property in his shop over which he has power of disposing, even though the disposingpower may be somewhat restricted as it was in this case, nevertheless forms part of the Bankrupt's property. The facts are as follows : The bankrupt was adjudicated on the i8th August, 1958 and on that date had in his possession four ladies' bicycles which the Hercules Cycle & Motor Co. (Ireland), Ltd. contended were held by him as the property of the Company and the invoice issued in respect of the bicycles was so endorsed, viz. " notwithstanding the furnishing of this invoice the bicycles, the serial numbers of which appear thereon, are held by the consignee as a Stockist and is the property of The Hercules Cycle & Motor Co. (Ireland), Ltd. and may not be sold otherwise than on a Credit Sales Agreement through the Hercules Cycle & Motor Company (Ireland) Ltd." The Official Assignee contended that these bicycles were within the disposition of the bankrupt and accordingly came within the scope of section 313 of the Ireland Bankruptcy Insolvency Act of 1857 and claimed the bicycles on behalf of the ordinary creditors. In August, 19.58 an application was made to the managing director of the Hercules Company (Ireland), Ltd. notifying him that the bicycles were within the disposition of the bankrupt pursuant to the aforementioned section and it was intended to The property of any adjudicated bankrupt who

apply to the Court for a sale of the bicycles. No reply was received and a notice of motion was served on the Hercules Company (Ireland), Limited, in which a request was made for an order for the sale or disposal under section 313 of the Act of 1857 of the four ladies' bicycles manufactured and distributed by the Hercules Company. The affidavit of the Official Assignee merely avered that the bicycles were within the order and disposition of the bankrupt and the Court messenger averred that he was in the bankrupt's shop and that the bicycles were displayed in a prominent position as merchan dise for sale. The case came on for hearing before Mr. Justice Budd on the 3ist day of July, 1959 and there was no appearance for the Hercules Company. The Court held that the bankrupt at the time he became a bankrupt had, by the consent and permission of the true owner thereof, in his possession, order or disposition four ladies' bicycles manufactured or distributed by the Hercules Company whereof the said bankrupt was the reputed owner, and ordered that the said four ladies' bicycles be sold and disposed of by the Official Assignee for the benefit of the creditors under the bankruptcy. In Re : O'Callaghan, a Bankrupt—Unreported judgement of Budd, J., 3ist July, 1959. Sale of land—solicitor stakeholder. A question of considerable interest to solicitors arose before Haugh, J., recently in the case of Sheppard v. Callaghan. This was a specific perfor mance action brought by the purchaser of a property which was held by the vendor as to portion thereof as full owner but as to the greater part as tenant for life under a settlement. The purchase price was £15,500 and a deposit of £3,875 was paid to the vendor's solicitor, who was named and described in the conditions of sale as the vendor's solicitor, but it was not stated that he was to receive the deposit " as agent for the vendor " or " as stake holder ". The purchaser having got a decree for specific performance, it appeared that the vendor's solicitor had in hand only £1,750 or thereabouts of the deposit, having paid out to the vendor or applied to his use the balance of over £2,120. The interest of the vendor in the property was subject to prior charges and the plaintiff had been awarded costs against the vendor, so that there was not enough money available out of the balance of the purchase money (and the £1,750 which the solicitor had lodged in Court pursuant to an Order to that effect) to pay to the trustees for the purposes of the Settled Land Acts of the settled part of the property the 40