The Gazette 1972

legislative, executive and judicial in Ireland, are derived

from the people of Ireland; Article 51 of the same

Constitution declared that the executive authority of

the Irish Free State was vested in the King (see judg-

ment in

Byrne v Ireland,

1961

Gazette).

Nowhere in

the Constitution of 1922 is there any reference to the

King exercising the prerogative of mercy or any modi-

cum of judicial power, save appeals to the Privy Council.

It follows that, after the Constitution of 1922 had been

enacted, the King had no function whatsoever in the

selection of punishment or the administration of justice.

Consequently the words "during His Majesty's pleasure"

were inconsistent with the Constitution of 1922, apid

were not carried over either by that Constitution,

by the present Constitution of 1937. If the Court sfen-

tences a young person to be detained, the sentence irtay

be brought to an end at any time by the Court and the

power to determine the duration of the sentence is

vested exclusively in the Courts. There is nothing in

the Constitution which indicates that an indeterminate

sentence may not be imposed.

(13) The sentence imposed was not the correct statu-

tory one by Section 133 of the Children's Act, 1908,

but the one imposed in cases of insanity under the

Trial of Lunatics Act, 1883. The formula and sen-

tence was one which was not authorised by law and

cannot stand, and the President's decision must be

allowed. The appeal was accordingly dismissed by the

full Supreme Court. Separate judgments were delivered

by the Chief Justice and by McLoughlin J. (who dis-

agreed with the Constitutional argument).

[The State (Pascal O'Hara) v. Governor of Central

Mental Hospital and the Attorney General; Full

Supreme Court; unreported; 20th December 1971.]

Revenue Commissioners entitled to claim estate duty

to husband's half share under Succession Act.

The wife, who was domiciled in the Republic of Ireland,

made her will in April 1967. She appointed the defen-

dant bank to be executors, and, having given legacies,

gave the husband her personal belongings and £15,000

if the husband did not survive her for the period, she

left her property to a number of relatives. Her husband

made a similar will on the same day. She died on the

4th May 1969 and was not survived by any children.

Her estate was valued at £95,000. The husband was

unconscious at the time of his wife's death, and died

the following day. Neither husband nor wife renounced

the legal right to which each was entitled in the estate

of the other, by Section 111 of the Succession Act, 1963.

The Revenue Commissioners contended that the hus-

band was competent to dispose of the half share of the

wife's estate for the purposes of Section 2 (1) (a) of the

Finance Act, 1894. The defendant bank contended that

the husband had never elected to taking the legal right

in the wife's estate, and so was not entitled to any share

of it. Until six months from receipt of notice of the

right, the surviving spouse has a vested right to take

the legal right. It follows that, as the husband had a

vested right to take the legal right during lifetime, he

was "competent to dispose" within the Finance Act,

1894, of the half share, and the Revenue Commissioners

can thus claim estate duty upon it. This result was not

foreseen at the time the Succession Act was passed.

[re Douglas Urquhart, deed.; Revenue Commissioners

v Provincial Bank of Ireland; Kenny J.; unreported;

2nd June 1972.]

Subsequent action that first registered owner is declared

full owner will not deprive a bank of a right to a

charge on the lands on behalf of second registered

owner.

The first-named defendant, the father, was registered

as full owner of the lands in Folio 33488, Co. Roscom-

mon, in November 1960. In April 1963 he transferred

the lands to his son, Michael, the second-named defen-

dant, subject to the father's right to reside in the

dwellinghouse, and to be suitably supported and main-

tained, but there was no specific covenant about this.

In June 1963 the son Michael was registered as full

owner and the right of the father to reside in the

dwellinghouse and to be supported and maintained was

entered as a burden on the Register. In October 1964

the son Michael applied to the plaintiff bank for an

advance to be secured by the deposit of the Land Certi-

ficate relating to Folio 33488.

The Land Certificate was duly deposited with the

bank in December 1964 and Michael now owes the

bank £893 for advances made. In June 1967 the father

issued a Civil Bill in the Circuit Court against the son

claiming to have the deed of transfer of April 1963 set

aside on the ground that it was obtained by fraud and

undue influence. The order of the Circuit Judge made

in March 1968 stated that this deed of transfer was

void, and that the son was to hand it up to the father

for the purpose of being cancelled. The Circuit Court

made no inquiry as to the whereabouts of the Land

Certificate, and the plaintiff bank had no notice of the

Circuit Court proceedings until the Land Registry re-

quested them to lodge the Land Certificate so that the

father could be registered once more as full owner. This

the plaintiff bank refused to do, but, despite this the

father was registered as full owner in July 1968 and the

burden in his favour was deleted. The plaintiff bank

have now sued the two defendants, father and son, for a

declaration that they are entitled to a charge on the

lands arising out of the deposit of the Land Certificate.

The plaintiffs contention that they took the deposit in

good faith and so have a valid security against both

defendants is well sustained; a purchaser or a mortgage

of an equitable interest who takes in good faith without

notice of a claim is not bound by it. The rights of the

father to reside on the land have now been deleted

from the folio, and he cannot now revive it.

[Provincial Bank of Ireland v Patrick Glynn and

Michael Glynn; Kenny J.; unreported; 19th June 1972.1

Arbitration award of costs set aside.

A written agreement was made in February 1964 be-

tween the plaintiffs, owners of the land, and the defen-

dant building contractors, who contracted to build

licensed» premises at Artane for £15,838. The agreement

was the 1959 standard agreement of the Royal Institute

of Architects of Ireland save that the words "schedule

of items" were substituted for "bill of quantities".

Although mahogany and red deal were specified for

some of the work, it was subsequently agreed to substi-

tute a better and harder timber called "amonphosis".

In placing this material the contractors claimed that

they were entitled to be paid on the basis that the work

was "polishing" for which the appropriate rate is about

eight times that for "painting". At plaintiff's request

the President of the Royal Institute of Architects ap-

pointed the second-named defendant to act as arbitrator.

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