Annie F Conlan and Thomas F. Coyle v Carlow County Council and James O'Neill and William M. Byrne

• Jurisdiction: Ireland
• Judge: K. B. Div.
• Judgment Date: 29 April 1912
• Court: King's Bench Division (Ireland)
• Date: 29 April 1912

Annie F. Conlan and Thomas F. Coyle

and

Carlow County Council and James O'Neill and William M. Byrne (1).

K. B. Div.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1912.

Assignment — Part of debt — Right of assignee to sue — Equitable assignment — Supreme Court of Judicature Act (Ireland), 1877 (40 & 41 Vict. c. 57), s. 28, sub-s. 6; s. 27, sub-s. 4.

An assignment of part of a debt is not within s. 28, sub-s. 6, of the Judicature Act (Ireland), 1877.

Opinion of Bray, J., in Forster v. Baker([1910] 2 K. B. 636) concurred in.

Decision of Darling, J., in Skipper and Tucker v. Holloway and Howard([1910] 2 K. B. 630) dissented from.

But the assignee of part of a debt may maintain a Common Law action in respect of such part, where all persons interested in the debt or in resisting it are parties to the action.

Case Stated by Mr. Serjeant Moriarty, Commissioner of Assize, on the hearing of a civil-bill appeal. The case set out as follows:—

“The civil bill in this action claimed £40, being the amount of two several sums of £20 each alleged to be due and payable by

the defendants, the County Council of Carlow, on the 1st day of April and on the 1st day of July, 1911, to the defendant, William M. Byrne, as trustee for and on behalf of the plaintiffs under an assignment in writing, dated the 9th day of November, 1909, whereby the defendant, James O'Neill, under his hand, absolutely assigned to the defendant, William M. Byrne, as such trustee for the plaintiffs as aforesaid, the sum of £164 16s., payable by instalments of £20 per quarter, until the said sum of £164 16s. should have been paid, each of said quarterly instalments to be paid out of the salary of the defendant, James O'Neill, as accountant of the defendants, the County Council of Carlow, which should accrue due on the 1st of January, 1st of April, 1st of July, and 1st of October in each year. It was heard by the County Court Judge for the county of Carlow during the Michaelmas Sessions of 1911, who, having dismissed the defendant, William M. Byrne, out of the said suit, gave a decree in favour of the plaintiffs against the defendants, the County Council of Carlow, for the said sum of £40. From this decision the defendants, the County Council of Carlow, duly appealed, and the appeal was heard before me at Carlow, as Commissioner of Assize, on Wednesday, the 28th day of March, 1912.

“The following facts were admitted by both sides, and are found by me:—

“1. The defendant, James O'Neill, was at the dates hereinafter mentioned, and is, the accountant to the defendants, the Carlow County Council, in respect of which office he receives a salary of £130 per annum, payable quarterly on the 1st January, 1st April, 1st July, and 1st October in each year.

[Paragraphs 2, 3, and 4 set out facts showing that the defendant, James O'Neill, had become indebted to the plaintiffs in the sum of £141 13s. 6d., in respect of moneys paid by them as surety for him, and that on the 29th March, 1909, judgment was entered up by the plaintiffs against the defendant, James O'Neill, for the said sum of £141 13s. 6d., and £5 11s. for costs, making in all the sum of £147 4s. 6d., and that the plaintiffs had obtained an instalment order under the Debtors Act against the defendant, James O'Neill, directing him to pay the amount due on the judgment and costs by quarterly instalments of £20 each.]

“5. The amount due by the defendant, James O'Neill, to the plaintiffs on foot of the said judgment and interest thereon, and for the costs of the said proceedings under the Debtors Act, amounted at the date of the agreement in the next paragraph hereof mentioned to £164 16s.

“6. By writing under the hand of the defendant, James O'Neill, addressed to Richard J. Keogh, Esq., Secretary of the defendants, the County Council of Carlow, and to the National Bank, Limited, Carlow Branch, Treasurer of the said County Council, dated the 9th day of November, 1909 (being the authority referred to in the agreement of even date next hereinbefore mentioned), the defendant, James O'Neill, thereby authorized and required them to pay to the defendant, William M. Byrne, on behalf of the plaintiffs, the said sum of £164 16s. by quarterly instalments until the said sum of £164 16s. should have been paid, each of the said instalments to be paid out of his salary as accountant to the defendants, the County Council of Carlow, which should accrue due on the 1st January, 1st April, 1st July, and 1st October in each year, and the defendant, James O'Neill, thereby agreed that the authority thereby conferred should be a sufficient discharge from him to the defendants, the County Council of Carlow, for the payment of the said sums. A copy of this writing is set out in the schedule to this case.

“7. The said writing in the last paragraph mentioned was served on the said Richard J. Keogh and Thomas H. O'Donnell, Manager of the National Bank, Carlow, on the 10th day of November, 1909.

“8. The defendants, the County Council of Carlow, did not pay the quarterly instalments of £20 each, amounting to £40, which became due on the 1st April, 1911, and 1st July, 1911.

“Serjeant Molony, K.C., and D. J. O'Brien (instructed by John J. Duggan, solicitor) appeared for the plaintiffs, and contended that the written authority of the 9th November, 1909, was a valid assignment both under the provisions of the Judicature Act and in equity, and that the Court was bound to give effect to all equitable rights, and affirm the decree. T. S. F. Battersby, K.C., and Edmund Lupton (instructed by Mr. C. H. Thorp, solicitor) appeared for the defendants, the County Council of Carlow, and contended that they were not liable on the grounds, inter alia, that the writing mentioned in paragraph 7 hereof was not an assignment in law or equity, and if it was an assignment, it was of part only of a debt, and that there could not be a valid assignment thereof, and that by reason thereof the plaintiffs were not entitled to succeed, and that the said decree should be reversed with costs.

“I asked counsel for the plaintiffs and the defendants, the County Council of Carlow, if they were willing that I should state a case, and counsel for...