The Gazette 1967/71

Four men set out on an unlawful poaching escapade, at 2 a.m. in January 1967 to shoot deer on Tore Mountain, near Killarney: about 3 a.m. one deer was killed, and another wounded. The plaintiff was accid entally shot by the defendant, who thought he was firing at deer. Held by Murnaghan J. that the plaintiff and the defendant were participators in the crime of taking deer away from land which did not belong to them, and that the shot which injured the plaintiff was a step in the execution of the common illegal purpose. The Courts cannot consequently entertain the plaintiff's action. [O'Connor v. McDonnell—unreported—Murnaghan J. 30 June 1970.] Nuisance Instead of dismissing "with reluctance" a complaint of statutory nuisance against a pig farmer for repeatedly spreading foul smelling pig excrement on a field and thus interfering with the comfort of inhabitants of houses near by, justices at Southam, Warwickshire, should have taken courage and found the complaint proved, Mr. Justice Ashworth said when giving judgement allowing an appeal by a chief public health inspector from the dismissal. [Peety v. Field. Q.B.D. The Times, 9 December, 1970.] Planning The House of Lords allowed an appeal by Margate Corporation from the majority decision of the Court of Appeal on December 11, 1968, that the Lands Tribunal (Mr. J. S. Daniel, Q.C.), had correctly assessed at £13,500 the compensation to land developers, Devotwill Invest ments Ltd., of Westgate Kent, consequent on the cor poration's refusal of planning permission to develop for residential use 1.35 acres of land fronting on to Canter bury Road in Birchington, Kent. The reason for the refusal was that part of the land would be needed to ease traffic congestion by a projected by-pass not yet shown on the Kent development plan, which would traverse the company's land. [Margate Corporation v. Devotwill Investments Ltd. House of Lords. The Times, 12 November, 1970.] Practice It was widely supposed that service of writs within the precincts of the High Court was a nullity but that impression was incorrect. Mr. Justice Ashworth said in the Queen's Bench Divisional Court. [Ex Parte Brantschen Privy Council. The Times, 5 December 1970.] Restrictive Practices The power of the National Federation of Retail News agents, Booksellers and Stationers to boycott newspapers and periodicals was curtailed by the Court's decision allowing an appeal by the Registrar of Restrictive Trad ing Agreements. [In re National Federation of Retail Newsagents,

Booksellers and Stationers Agreement (No. 3). Court of Appeal. The Times, 16 December, 1970.] His Lordship granted to Hull fish merchants interim injunctions restraining the implementation of a resolution passed by the Birmingham Fish, Game and Poultry Dealers' Association to the effect that fish carried from Hull to the Birmingham market must be carried by one particular firm of transporters, and on the footing that the passing of the resolution would eventually be held to be unlawful by the Restrictive Practices Court, he ruled that it constituted an interference with their trade by unlawful means. [Brekkes Ltd—Pennywick V.C. v. Cattel and Another. The Times, November 12, 1970.] Sale of Goods Plaintiff appeals against O'Keeffe P.'s order dismissing his claim relating to the purchase of a quantity of onion seed known as "Lyaskouski Bulgarian" seed. He based his opinion on the fact there was a sale by description, to wit "Lyaskouski Bulgarian" onion seed, and that the plaintiff had failed to establish that the goods did not correspond with the description, or were not merch antable. The Supreme Court (O'Dalaigh C. J., Walsh and Fitzgerald J. J.) unanimously allowed the appeal. The Chief Justice, in delivering the judgment of the Court, pointed out that the horticulturalist plaintiff had been engaged in onion growing for many years. The types of onion seed which the plaintiff selected for growing in 1963 were "Struttgarter" and "Nunhampark" which would be suitable for the Irish Market, and he ordered a ton of these onions from defendants for the 1964 season. The defendants, not being able to supply the correct quantity, offered to substitute "Lyasouski Bul garian" for "Struttgarter". The plaintiff was supplied with a catalogue description of "Lyaskouski" and con sulted the County Agricultural Adviser and the Agri cultural Institute, who advised that this seed appeared to be right for the Irish market. The plaintiff then gave his order. The seed cropped well, but more than 10% of it became unsuitable. The President's view that the plaintiff did not establish that the defendants had failed to deliver what he had ordered is not a correct view of the transaction. The facts establish that there was specifically a sale by reference to the description fur nished to the plaintiff of the characteristics of "Lyas kouski". However the goods supplied did not correspond with the goods ordered. Accordingly Section 14 of the Sale of Goods Act 1893 which provides that, where goods are bought by description, there is an implied condition that the goods are of merchantable quality, applied, particularly as the defendant seller did deal in goods of that description. There is an exemption clause in defendant's acceptance note which would cover them against a breach of warranty, but not against a breach of condition. The defendant must pay damages for this breach. The plaintiffs had claimed £19,930, but, if no agreement is reached, an inquiry as to damages will have to be held. [McDowell v. Shouldicen, unreported — Supreme Court—31 July 1969.] 163