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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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