The Gazette 1981

DE C EM BER 1981

GAZETTE

mortgages were created over the property, and, after the premises were sold in the course of the bankruptcy, the Official Assignee contended that the mortgages were ineffective in attempting to capture the licence as part of the security, principally because none of the documents creating the mortgages referred specifically to the licence. Held (per Hamilton J.), that the licence could not be regarded as property capable of separation from the licensed premises, and, therefore, the licence was subject to the same changes and incumbrances as the property, and was incapable of passing to the Official Assignee in priority to the charges registered against the property to which it was attached. In re BJ.S-B., a bankrupt. — High Court, (per Hamilton J.) — 15 August 1979 — unreported. LAW OF PROPERTY Failure of Purchaser or Mortgagee to make necessary enquiries or requisitions on purchase or mortgage. Mortgage deemed to have constructive notice of the third party claim of the wife of the Mortgagor which defeated the rights of the Mortgagor. A married couple, Mr. and Mrs. H. (the first and second named Defendants) in 1964 purchased a house with monies provided by Mrs. H. from the proceeds of the sale of a previous matrimonial home which had been bought in Mrs. H's name by Mrs. H's father and from a mortgage from the F.N.B.S. (the third named Defendants). The title to the house was vested solely in Mr. H's name although Mrs. H. vaguely understood that it was to have been put in her name. Mr. H. got a further mortgage from the F.N.B.S. in 1969 and the mortgage of 1964 was redeemed. Again Mrs. H. was not mentioned. Mr. H. then incurred a substantial overdraft over a period of years and in July 1973 agreed to give the Plaintiff Bank a second mortgage over "his" house having just previously in May 1973 asked the Plaintiff to send all bank letters to him to his business address. Mr. H's Solicitors failed to deal with the granting of the second mortgage to the Plaintiffs informing the Plaintiffs

statements, did so on a wrong basis and the statements should not have been admitted. (3) The Jury, either by a specific question, or by an appropriate direction, ought to have been asked to decide, as a question of fact material to the defence, whether the Appellant's evidence that he had been held against his wishes, as he described, was, or was not true. (4) (per Kenny J.), assuming that the Supreme Court had jurisdiction to hear an appeal directly from the Central Criminal Court, he was in agreement with the conclusions enunciated above; but that the assumption that such an appeal lay directly was one which he was not then prepared to assent to, or dissent from, without having full argument on the point. DPP v. Christopher Anthony Lynch — Supreme Court (per O'Higgins, C.J., and Walsh and Kenny J.J.) — 19 February, 1981 — unreported. ROAD TRAFFIC ACT Regulations made under an Act which has been passed but which has not yet come into operation are not invalid merely because the Act is not yet in operation provided the making of the regulations was "necessary or expedient" to give the Act force and effect immediately upon its coming into operation — Section 10(1) of Interpretation Act 1937 considered. A motorist was charged under Section 49(2) of the Road Traffic Act 1961, as inserted by Section 10 of the Road Traffic (Amendment) Act 1978, with driving while having a concentration of alcohol in his blood which was in excess of the permitted level. In order to sustain a conviction a certain defined procedure had to be followed as to the taking of a sample of blood or urine and its subsequent examination and this procedure was laid down in the regulations contained in S.I. No. 193 of 1978. These regulations were made on 11 July 1978 under the Road Traffic (Amendment) Act 1978 which Act was passed on 5 July 1978 but which Act did not come into operation until 20 July of that year. The motorist was-convicted in the District Court and the matter came before the High and subsequently the

Supreme of Conditional Order of Certiorari seeking to quash the conviction. It was contended by the motorist that the conviction was bad because the regulations made by S.I. 193 of 1978 were invalid since the Act under which they were made had not then come into force. Against this argument, Section 10(1) of the Interpretation Act 1937 was relied on, which Section (Section 10(l)(b)) provided that, "If (an) Act confers a power to make or do, for the purpose of such Act . . . . to have full force and effect immediately upon its coming into operation, such power may, subject to any restrictions imposed by any such Act, be exercised at any time after the passing of such Act". Held (per Henchy J.) that the regulations made under S.I. 193 of 1978 were valid, as the parent Act had been passed; and that it was a matter of judicial notice that the operation of breathalyser tests, and tests for the analysis of the concentration of alcohol in the blood or urine of a motorist, had broken down by 1978; and that statistics as to the part played by excessive drinking on the part of drivers in road accidents were so notorious that the 1978 Act had become a matter of urgent legislative priority; and that therefore the making of the regulations by the Minister in advance of the coming into operation of the Act was "necessary or expedient" and that therefore the regulations were valid by reason of Section 10(1) of the Interpretation Act 1937. The State (McColgan) v. Director of Public Prosecutions and District Justice Clifford. Supreme Court, (per Henchy J. with O'Higgins, C.J., and Griffin J.) 25 March 1980. — un- reported. LICENSING A publican's licence cannot be regarded as property capable of separation from the licensed premises. The bankrupt was the owner of a public house and the relevant publican's licence attaching to the premises. The bankrupt was adjudicated bankrupt on 6 December, 1976. During 1974 and 1975, four Court by way

xxvi