The Gazette 1972

UNREPORTED IRISH CASES

Judgment mortgage not defective because of errors in the description of lands unless misleading, and is deemed suiiiciendy verified on oath. Ashtown Car Sales Ltd. borrowed money from Credit Finance, the plaintiffs, and on 31st March 1968 gave a debenture charged on their assets to secure its repay- ment. As additional security. Credit Finance got a guarantee dated 26th April 1969 by three persons in- cluding the defendant by which each of them guaran- teed the repayment to the plaintiffs of the amount due by Ashtown Car Sales Ltd. When there was £5,977.50 due, proceedings on the guarantee were brought by the plaintiffs against three guarantors. The plaintiffs first got judgment for this sum and costs against one of the signatories on 27th October 1970 and on 16th November 1970 they got judgment and costs against the defendant. The judgment was obtained by default. An affidavit under the Judgment Mortgage Act, 1850, was filed in the Central Office on 22nd December 1970 and in the Registry of Deeds on December 23rd. The plaintiffs have now brought this action to raise the amount due to them which is secured by the judgment mortgage. The defendant contends firstly that the affidavit is not sufficiently specific as to whether the mortgage is against 5 Howth Road or 578 Howth Road, but it was held that the property was identified with sufficient clarity. It was secondly contended that the description of the property was not verified on oath, but it was held without citing authority that the description of the property was sufficiently verified. Judgment for the full amount claimed and costs was accordingly awarded to the plaintiffs. [Credit Finance Ltd. v Michael Grace; Kenny J.; unreported; 29th May 1972.] Applicant, convicted of murder in 1956, entitled to habeas corpus. (1) The applicant was convicted of murder at the Central Criminal Court before Teevan J. and a jury on the 19th April 1956. As the applicant was under 17 years of age, he could not be sentenced to death. The sentence passed was that "The applicant was to be detained until the pleasure of the Government be made known concerning him." (2) The subsequent warrant directed that the ; appli- cant should be detained in Marlborough House. (3) On the 2nd May 1956, the applicant having attained 17 years of age, he was directed to be removed to Mountjoy Prison. On the 15th May 1956, the appli- cant was directed to be removed to St. Patrick's Mental Institution, Clonmel, on the 14th August 1956 the applicant was directed to be removed to the Modified Borstal class at Mountjoy. (4) In July 1957 the applicant was directed to be removed to the Central Mental Hospital, Dundrum, as two doctors certified he was insane. (5) On the 29th January 1968 the applicant wrote to the High Court from the Central Mental Hospital that his detention was not in accordance with law, and applying for a habeas corpus. The President, having

obtained the relevant documents, came to the conclu- sion that the order should be refused, and an order made on the 15th February 1968 confirmed this. (6) On the 17th December 1968 the applicant ap- peared in person before the Court of Criminal Appeal for an application for an enlargement of time within which to give notice of an application for leave to appeal against conviction and sentence imposed in April 1956. The Court refused the application. (7) As a result of further correspondence, the Presi- dent informed the applicant on the 16th June 1969 that no new grounds had been disclosed for granting a habeas corpus. (8) By letter of the 17th June 1969 the applicant made a further application to the High Court which was inquired into and refused by Murnaghan J. on July 15th. The applicant was informed that his atten- dance in Court was not necessary. (9) The applicant appealed from Murnaghan J's refusal to grant a habeas corpus to the Supreme Court. The Supreme Court, by order of the 15th December 1969, directed the Governor of the Central Mental Hospital to produce the body of the applicant before the High Court on the same day. The applicant was duly produced before the President of the High Court who ordered that the proceedings should stand over for argument. (10) The case came on for full hearing in April 1970 and, on the 27th April 1970 the President adjudged that the applicant's detention was insufficient, and ordered the immediate release of the applicant. The grounds were that the sentence imposed was to entrust to the Government the power to select the punishment which was to be visited on him, and that, following Deaton (1963) I.R., this was inconsistent with the Con- stitution. (11) The State then appealed to the Supreme Court against the granting of habeas corpus by the President. (12) Walsh J. stated that the decision of the Court turns upon the effect of Section 103 of the Children's Act, 1908. The section provides that, in the event of a conviction, the Court should sentence the young person to be detained during His Majesty's pleasure, and then shall be liable to be detained in legal custody in such place as the Chief Secretary shall direct. This means in effect that a question of punishment was contemplated. If the section purports to rest an authority in the Executive, then, following Deaton, such a provision is inconsistent with the Constitution. By virtue of Section 11 of the Adaptation of Enactments Act, 1972, the power of the Chief Secretary to determine where the accused is to be detained is now vested in the Minister for Justice. But the term "during His Majesty's pleasure" does not vest this power in the Executive as the Presi- dent found. In Deaton's case, it was stated that the selection of punishment was an integral part of the administration of justice, and therefore falls exclusively within the judicial sphere. An examination of English constitutional law would show that the King had exer- cised powers of a judicial nature in mediaeval times, such as the prerogative of mercy and the right to com- mute sentences. Article 2 of the Constitution of 1922 states that all powers of government and all authority,

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