Whelan v National City Bank Ltd
| Jurisdiction | Ireland |
| Court | Court of Criminal Appeal |
| Judgment Date | 01 January 1933 |
| Date | 01 January 1933 |
District Justice - Order made under Public Safety (Emergency Powers) Act,1923 (No. 28 of 1923), sect. 11 - Order prohibiting a bank from dealing with money lodged on deposit receipt - Executive Minister alleging that money represented "public funds or funds which ought to be under the control of a Minister" - Transfer of the money by the Bank at the request of the Minister for Finance to Public Account - Action brought by depositor of the money for its recovery - Failure of the Minister for Finance to follow procedure laid down by sect. 11, sub-sects. 2 and 3. of the Act - Effect of order of District Justice - Public Safety (Emergency Powers) (No. 2) Act, 1923 (No. 29 of 1923).
Sect. 11 of the Public Safety (Emergency Powers) Act, 1923 (No. 28 of 1923), which was brought into operation by the Public Safety (Emergency Powers) (No. 2) Act, 1923 (No. 29 of 1923), provides:—
"(1) If and whenever an Executive Minister shall satisfy a District Justice that there is reasonable ground for suspecting that any sum of money standing to the credit of any person in the books of any Bank or similar institution is, or represents, or is directly or indirectly derived from
(a) any stolen property or funds, or
(b) any public funds or funds which ought to be in the custody or under the control of a Minister or a Government Department,
the District Judge [sic] shall by order prohibit any transfer of, or other dealing with such sum of money or any part thereof.
(2) Whenever an order is made by a District Justice under this section prohibiting the dealing with any sum of money, the Minister for Finance shall give public notice by advertisement or otherwise of such prohibition, and unless within a time to be limited by such notice (not being less than one month) or such extended time as the Minister for Finance shall allow, some person proves to the satisfaction of the Minister for Finance that such sum of money belongs to him and is not and does not represent and is not directly or indirectly derived from
(a) any stolen property or funds; or
(b) any public funds or funds which ought to be in the custody or under the control of a Minister or a Government Department,
the Minister for Finance shall certify in writing that such sum of money is forfeited to the Minister for Finance."
Sub-sect. 3 provides for the discharge of the order of the District Justice if any person proves to the satisfaction of the Minister for Finance the matters mentioned in sub-sect. 2. The Act was, by sect. 17, to continue in force for six months, but by sect. 7, sub-sect. 6, of the Public Safety (Punishment of Offences) Temporary Act, 1924 (No. 15 of 1924), sect. 11 was continued in force for the duration of that Act, i.e., until the 21st April, 1925.
The plaintiff on 27th March, 1922, lodged a sum of money on deposit receipt in the defendant Bank. In January, 1924, an order was made by a District Justice under sect. 11, sub-sect. 1, of the Public Safety (Emergency Powers) Act, 1923, on the application of the Minister for Home Affairs, prohibiting the Bank from dealing with the money. No steps under the Act were taken by the Minister for Finance until January, 1927, when he requested the Bank to transfer the money to the credit of his Public Account, he undertaking to indemnify the Bank against any loss incurred. The money with the accrued interest was paid by the Bank to the account of the Minister on the 2nd February, 1927. In July, 1932, the plaintiff issued a summary summons against the Bank claiming payment of the money. By leave of the Court the Minister for Finance was served with a third party notice and he appeared on the hearing of the summons. The indemnity given by him to the Bank was admitted by him. It was contended on his behalf that the order of the District Justice established prima facie that the money was public money which ought to be under the control of the Minister, and that the plaintiff's action should either be dismissed or the plaintiff required to proceed to plenary hearing in order that he might prove his claim to the money.
Held that an order of a District Justice under sect. 11, sub-sect. 1, was not intended to decide any rights, but was merely intended to be in the nature of a precautionary measure or step to enable the funds to be retained until the ownership should be determined in the manner provided by the section, namely, by the Minister for Finance taking the steps contemplated by the section. As the Minister never took those steps and as the time had passed within which he could have taken them the order of the District Justice was spent and of no effect. And, as it was admitted that the plaintiff had lodged the money with the Bank, and that the interest claimed had accrued due in respect of it, the...
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