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GAZETTE
JULY-AUGUST
1980
of each of the appellants for a
certificate of leave to appeal
against the conviction of each of
them was dismissed.
D.P.P. v. William Thomas Moore and
D.P.P. v. Brendan 0*Sullivan,
Court
of Criminal Appeal (per Finlay P. with
Griffin and Costello J.J.) - 29 May
1979 — unreported.
CRIMINAL PROCEDURE
Petty Sessions (Ireland) Act, 1851,
Section 10 (4). Whether the six
months limit for the commencement
of proceedings in the District Court is
a matter of defence, or docs it go to the
jurisdiction of die Court to entertain
the Summons.
The Defendants were vegetable
wholesalers, and were summonsed by
the Minister for Agriculture (the
Complainant) for allegedly dis-
playing vegetables which failed to
conform
to
common
quality
standards set by an EEC Directive.
The alleged offence took place on 30
May 1977, and the return date of the
Summons was 1 February 1978. The
Summons did not bear on its face any
note of the date on which it had been
issued by the District Court Clerk.
The Defendant contended in the
District Court that there was there-
fore no proof before the District Jus-
tice that the proceedings had com-
menced within the six month time
limit after the date of the alleged
offence provided for by Section 10
(4) of the Petty Sessions (Ireland)
Act, 1851. The Complainant sought
to adduce evidence that the summons
had been issued within the six month
period by relying on an endorsement
of service on the summons which
indicated that it had been served
within the six month period. The
District Justice, however, held that he
lacked jurisdiction to enter upon the
hearing of the summons, and
indicated that he proposed to strike it
out. The Complainant then asked the
District Justice to state a case for the
opinion of the High Court on the
matter.
Held:
(per Finlay P.)
1. That if, in fact, the complaint
had not been made and the sum-
mons had not been issued within
six months of the date of the
alleged offence, a good defence
would be afforded to the
Defendant.
2. That the time limit, arising under
Section 10 of the Petty Sessions
(Ireland) Act, 1851, was a matter
of defence to the Defendant only,
and did not go to the jurisdiction
of the District Court to entertain
the summons.
3. That therefore, the Complainant
should have been permitted to
prove the date of the issue of the
summons by referring to the
endorsement of Service on the
summons once the Defendant
had raised the question of the
time limit.
4. That accordingly, the District
Justice was not correct in law in
holding that he had no juris-
diction to enter upon the hearing
of the complaint.
In the Course of his decision, Finlay
P. referred to the cases of:—
The State
(James
Hempenstall)
v. Judge
Shannon and District Justice Reddon
[1936] I.R. 326 and
The Attorney
General v. Conlon (1937] I.R. 762.
The Minister for Agriculture v.
Norgro Limited
- High Court, (per
Finlay p.) 2 3 July 19 79 - unreported.
INSURANCE —
CONVEYANCING ACT 1881
SECTION 23 (4)
Mortgaged premises damaged by fire
— equitable mortgagee (by deposit of
mortgage deeds) entitled to proceeds
of insurance policy effected by mort-
gagor, where insurance company not-
ified of mortgage.
The premises, in Parnell Square,
Dublin, were held by the first
Defendant under a lease for a term of
900 years, which contained a
covenant by the lessee to repair, but
did not contain any covenant to
insure.
By resolution of the first
Defendant dated 30 September
1977, the third Defendant was auth-
orised to deposit the title deeds of the
premises with the third party Bank,
and this deposit was made on the
same day. Notice of this deposit was
given to the Sun Alliance and
London Insurance Group by the
Bank on 31 January 1979, the
Premises having been insured with that
Group against fire for the sum of
£5,000 in the names of the second
Defendant and fourth Defendant,
two of the directors of the first
Defendant, for the year period from
19 September 1978 until 18
September 1979.
Fire damaged the premises in
March 1979, and on 27 July 1979,
the two Plaintiffs, being the owners of
the lessors' interest in the premises,
obtained judgment against the first,
second and fourth Defendants for the
sum of £12,000 being the cost of
repairing the premises, and £1,900
for costs.
This matter came before the Court
by way of an application by the
Plaintiffs for an order of garnishee
attaching the sum of £5,000 payable
to the Defendants (or one or more of
them) by the Sun Alliance under the
fire policy.
The third party Bank (as equitable
mortgagees of the premises by de-
posit of title deeds) opposed the
application of the Plaintiffs, on the
grounds that the Bank had an interest
in the premises, that the Plaintiffs
could not have a greater interest in
the money than the insured, and that
the Bank had a right of some sort to
have its security maintained,
although as was pointed out in the
judgment, no authority was cited for
this proposition. A further argument
on behalf of the Bank was based on
the provisions of Section 23 (4) of the
Conveyancing Act, 1881. Section 23
(4) of the 1881 Act provides as fol-
lows:—
(3) All money received on an insur-
ance effected under the mort-
gage deed or under this Act shall,
if the mortgage so requires, be
applied by the mortgagor in
making good the loss or damage
in respect of which the money is
received.
(4) Without prejudice to any oblig-
ation to the contrary imposed by
law, or by special contract, a
mortgagee may require that all
money received on an insurance
be applied in or towards
discharge of the money due
under his mortgage.
It was submitted on behalf of the
Plaintiffs that the Bank did not give
any notice requiring the insurance