The Gazette 1981

DECE M BER

GAZETTE

1981

that partner but when the property was "bought for the house" then it could logically be inferred that it was to be the joint property of both partners. Counsel for the wife had put her claim to the furniture in the alternative. The purchase of furniture could not in itself affect the wife's claim to an interest in the house, but the subsequent behaviour of the parties cast light on the kind of agreement between them to buy and furnish a home through their joint efforts. Barrington J. cited with approval Lord Denning in Hazell v. Hazell [1972] A.E.R. at p. 923, as follows: "It is sufficient if the contri- butions made by the wife are such as to relieve the husband from expenditure which he would otherwise have had to bear. By so doing the wife helps him indirectly with the mortgage instalments because he has more money in his pocket with which to pay them. It may be that he strictly does not need her help — he may have enough money of his own without it — but if he accepts it (and thus is enabled to save more of his own money) she became entitled to a share." The Court in the instant case concluded that as the husband had paid immediately for a three-fifths interest in the home, the wife's claim was only in respect of the remaining two-fifths, and that the wife was entitled to one-half of that namely an undivided one-fifth share in the beneficial interest of the equity of redemption, together with an undivided one-half share in the house- hold goods and furniture other than such items as were personal to one or other of the parties. M.B. v. E 3 . - High Court (per Barr- ington J.) - 19 February 1980 - Money paid under a mistake of law — Miscalculation of sum needed to redeem annuity — Overpayment — Recovery of overpayment where parties not "in pari delicto". J.M. was owner in fee simple of a cottage vested under the Labourers Acts, subject to a redeemable annuity. Being desirous of redeem- ing, he applied to the Defendant Housing Authority who quoted a unreported. MISTAKE

redemption price of £1,163. Subse- quently the Plaintiff, as personal representative of J.M. deceased, paid that sum to the Defendants to redeem the annuity. The £1,163 was calcu- lated and paid before July 1974 when the Supreme Court gave judgment in the case of Meade v. Cork Co. Council (Supreme Court, 31 July 1974, unreported). According to the law as laid down in that case, the redemption price quoted and paid was £953.53 too much. The Plaintiff sued for the return of the over- payment. On a case stated to the Supreme Court by the Circuit Court Judge: Held (per Griffin J. and per Kenny J. with O'Higgins C.J. concurring) that: 1. The Defendants were not entitled to require the Plaintiff to pay the said sum of £1,163 to redeem the annuity. 2. The said sum was paid under a- mistake of law. 3. The Plaintiff was not in pari delicto with the Defendants in relation to the said mistake and the overpayment was recover- able from the Defendants by action. The cases of Dolan v. Neligan [ 19671 I.R. 247, and Kiriri Cotton Co. Ltd. v. Dewani [1960] 2 W.L.R. 127, were followed. Elizabeth Rogers v. Louth Co. Council — Supreme Court (per Griffin J. and per Kenny J. with O'Higgins CJ. concurring) — 11 March 1981 — unreported. CRIMINAL LAW Vagrancy Act, 1824, Section 4 (as applied to Ireland and amended by Section 15 of the Prevention of Crimes Act, 1871, and Section 7 of the Penal Servitude Act, 1891) — creating and providing for the offence commonly known as "loitering with intent" — inconsistent with the Constitution. The Plaintiff was convicted in the District Court on 13 November 1975 on two charges: (1) that being a suspected person he was found on 11 November 1975 loitering with intent to commit a felony, to wit, house- breaking, contrary to Section 4 of the Vagrancy Act, 1824; and, (2) that on the same date he had in his posses- sion certain housebreaking imple- ments with intent to commit some

felonious act, to wit, to steal, contrary to Section 4 of the Vagrancy Act, 1824. He was con- victed and sentenced to three months imprisonment on each of these charges. On appeal to the Circuit Court against sentence on 9 December 1975 the term of imprisonment was suspended on terms. On 2 July 1976 the Plaintiff was convicted in the District Court on a charge that being a suspected person, he was found on 17 June 1976 in a public place loitering with intent to commit a felony, to wit, steal contrary to Section 4 of the Vagrancy Act, 1824, as amended by the Acts of 1871 and 1891. He was sentenced to three months imprisonment, but suspended on condition that he be of good beha- viour and keep the peace for twelve months. No appeal was taken in respect of that conviction or suspended sentence. Section 4 of the Vagrancy Act, 1824, as amended by the Acts of 1871 and 1891, created a large number of separate and distinct offences. The Plaintiff, as stated, had been charged with two separate such offences. The Plaintiff sought declaration in the High Court: (i) that Section 4 of the Vagrancy Act, 1824, as amended and applied to Ireland by the Acts of 1871 and 1891, was not carried forward as a valid law by Article 50.1 of the Constitution, and, (ii) that certain convictions in the District Court were invalid. The High Court held (per McWilliam J.) that only the specified part of Section 4 of the Vagrancy Act, 1824, as applied to Ireland and amended by the Acts of 1871 and 1891 creating and providing for the offence commonly known as "loitering with intent" was inconsistent with the Constitution. Orders of certiorari quashing the convictions in the District and Circuit Court granted. The Defendants appealed to the Supreme Court. Held (per Henchy J., with Griffin, Kenny and Parke JJ., concurring, O'Higgins C.J. dissenting in part): 1. That the specified parts of Section 4 of the Vagrancy Act, 1824, as applied to Ireland and amended by the Acts of 1871

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