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GAZETTE

OCTOBER 1993

facilitate indexing in the Registry of

Deeds . . . the present case does not

differ in principle from

Thorp

v

Browne

and

Harris

v

O'Loghlen.

The reasoning in those cases

commends itself to commonsense

and it should in my opinion be

followed."

24

The Index of Lands in the Registry of

Deeds was not kept up to date for

many years

25

; therefore the only

purpose of describing the lands now is

to identify them. Any description

which identifies the lands with

reasonable certainty is sufficient even

if it is not wholly accurate.

In

O'Hara

the defendant before the

Supreme Court relied on

Re Flannery

26

and

Murphy and McCormack

21

.

In

Re

Flannery

Kenny J found a Judgment

Mortgage affidavit to be invalid

because a non-existent parish was

given. He said:-

"The provision in section 6 of the

Act of 1850 that the Parish should

be stated is to enable the Affidavit

to be registered correctly in the

Index of the Lands and in the

Abstract Book so that those

searching will not be misled. But if

a Parish which does not exist is

referred to in the Affidavit, it

cannot be correctly registered and in

my opinion is defective."

28

There are several problems here.

Firstly as we have seen the Index of

Lands was not kept up to date for many

years; is section 6 therefore obsolete?

Secondly the Supreme Court in

Grace

identifies the primary purpose of

section 6 as being to identify the lands.

Finally as we have seen Kenny J

himself in

Grace

recognised that a

misdescription of the lands is not

always fatal. One must conclude that

Flannery

was wrongly decided.

In

Re Murphy and McCormack

the

Judgment Mortgage affidavit omitted

the relevant Barony. The Supreme

Court held this to be a fatal error,

refusing to apply

Thorp

v

Browne.

In

O 'Hara

the Supreme Court,

recognising that this decision cannot be

reconciled with

Grace

, preferred

Grace.

It was satisfied that in case

either of the description of the lands, or

of the debtor's identity or place of

abode, a misdescription or omission

would not be fatal unless it was likely

to mislead.

Conclusion

Where does this leave

Allied Irish

Banks pic

v

Griffin

? In

O 'Hara

the

Supreme Court approved those

authorities which state that "a

commonsense" approach has to be

taken to:

(i) The description of the lands;

(ii) The identity of the debtor;

(iii) The debtor's place of abode;-

and (by implication) disapproved the

numerous authorities which hold that

strict compliance is necessary in these

matters.

Either

Griffin

is wrong, or the debtor's

"title, trade or profession" is in a

separate position from the rest of

section 6. In this folley ridden field, the

absurdity of the second solution does

not prove that it is wrong. But is there

any evidence that the courts have ever

treated the "title, trade or profession"

clause separately? In

Crosbie

v

Murphy,

Lefroy CJ said:-

"Everything upon the face of the

Judgment must of necessity be

inserted in the Affidavit."

29

In

Murphy v Lacey,

Porter MR stated:-

"The Statute was not complied

with."

10

In

Sexton v Valente

31

Judge Connolly

said:-

"While the Court has jurisdiction to

relieve in case of non-compliance

with a Rule, it has no jurisdiction in

the case of a Statutory

requirement."

32

There is nothing in these judgments to

show that the "title, trade or

profession" clause is in a special

position. Nor do we lack decision

(notably

Re Swanton 's Estate

) while

the Court overruled objections to the

description of the "title, trade or

profession"; and even in

Crosbie v

Murphy

as we have seen, Compton J

admitted that a purposive approach to

this clause is possible.

One must conclude that the "title,

trade or profession" is in the same

position as the rest of section 6: i.e.

while many cases on the point insist

on strict compliance with this section,

these must yield to that line of

authority, approved in

O'Hara

, which

holds that no error which does not

deceive is fatal.

It was open to Denham J to follow the

authorities cited. Nor could she fairly

be expected to predict the outcome of

the appeal in

O'Hara.

However one

must regret this return to strict

compliance. Since the "title, trade or

profession" clause was not at issue in

O 'Hara

and was not referred to there,

it is just possible to argue that this

clause is not covered by that judgment.

It is safe to predict that such

arguments will be made, until the

Supreme Court, which has tried so

hard to restore commonsense to this

topic, puts the matter to rest.

References

1. (1860) 11 Ir. Ch. Rep. 397

2. (1860) 11 Ir. Ch. Rep. 397 at 402.

3. See

Harris v O'Loghlen

(1888) LR (Ir.)

Vol. XXI11 61 at 81 per Lord Ashbourne

L.C.

4. See

Spaddacini

v

Treacy

(1888) LR (Ir.)

Vol XXI 553 at 559 per Porter M.R.

5. See in particular

Thorp

v

Browne

(1867)

LR 2HL 220;

Harris v O'Loghlen

(1888)

LR (Ir.) Vol XXI11 61;

Credit Finance

Ltd. v Grace

Supreme Court 9 June, 1972

Unreported.

6. High Court 10 May, 1989 Unreported;

Supreme Court 7 April, 1992 Unreported.

7.

Allied Irish Banks pic v Griffin

(1992) 2 IR

70; (1992) ILRM. 590.

8. (1992) 2 IR 70; (1992) ILRM 590.

9. (1867) LR 2 HL 220.

10.(1858) 8 ICLR 301.

11.(1896) 31 ILTR42.

12.(1897) 31 ILTR 166.

13.(1858) 8 ICLR 301 at 311.

(Continued on page 302)

299