Boyse v Simpson

• Jurisdiction: Ireland
• Judgment Date: 18 January 1859
• Date: 18 January 1859
• Court: Exchequer (Ireland)

Exchequer

Before PIGOT, C. B., and GREENE, B.

BOYSE

and

SIMPSON.

Leroux v. BrownENR 12 C. B. 801.

Hough v. Edwards 26 Law Jour., Exch., 54.

Ex parte Richards 4 Dea. & Ch. 190.

Johnson v. DiamondENR 11 Exch. 73.

COMMON LAW REPORTS 523 H. T. 1859. Exchequer. BOYSE v. SIMPSON.* (Exchequer). Jan. 12, 14, 18. IN this ease, J. Kernan, on behalf of the plaintiff, a judgment ere- A dividend payable by an ditor of the defendant, had obtained, on the 3rd of December 1858, assignee in bankruptcy to a garnishee order under the 63rd section of the Common Law Pro- a creditor who has proved in cedure Act, 1856, attaching a sum of £135, the amount of a div- the bank- reuapataceyt mbaettaert. idend payable to the defendant out of the estate of Robert Scott, ttaheehgeadruninshdeere a bankrupt, and calling upon the official assignee of the Court of Bankruptcy and Insolvency, and the creditors' assignee, to clauses of the Common Law show cause why they should not pay out of said dividend the Procedure Act 1856, by a amount of the plaintiff's debt. It appeared that an order bad been, judgment cre ditor of the on the 30th November 1858, made in the bankruptcy matter, by person to whom such di Plunket, J., whereby it was ordered that the creditors of the said vidend is pay able. Robert Scott should be paid a dividend of four shillings and sixÂpence in the pound; and by the schedule framed on the basis of that order, it appeared that a sum of £121. 4s. was payable to the defendant. B. Pilkington, for the official assignee, now showed cause. J. D. Fitzgerald and J. Kernan, for the plaintiff. The arguments were substantially the same as those in Oilmour v. Simpson, supra, App. xxxviii. Cur. ad. volt. PIGOT, C. B. We are of opinion that the dividend in the bankrupt matter, which was attached by the garnishee order, is not a debt proÂperly the subject of attachment under the garnishee sections of the *Before P1GOT, C. B„ and GIVENNE, B. Jan. 18. H. T. 1859. Irish Common Law Procedure Act 1856, 19 & 20 Vic.; c. 113. Exchequer. If we should proceed at once to act on that opinion, the result BOYSE V. must be, that we should not only discharge the conditional order on the assignee (the garnishee), to pay the dividend to the gar SIMPSON. nishee creditor, but we should set aside the whole attachment order. It is important that we should distinguish the reasons on which we have formed the opinion just stated, from some of the grounds which have been urged in argument on the part of the garÂnishee. In the first place it was objected, that the garnishee order was made prior to the order and proceedings in the bankrupt matter, by which the right of the bankrupt's creditor to present payment was completed ; and that, on that ground, the dividend was not a debt when the garnishee order was obtained. To this it seems to me to be an answer, that if, when those proceedings were completed, the dividend (which was only a part of a debt preÂviously due from the bankrupt) became such a "debt owing" by the assignee as could then be attached by a garnishee order, it was, at the least, a " debt accruing" when that order was obtained, and was, as such, capable of being attached under the 63rd secÂtion. It is not disputed, upon this motion, that the amount of the dividend would, if not attached, be payable on demand, by the assignee, to the bankrupt's creditor, who was the original debtor in the garnishee proceeding. Secondly ; it was contended, on the part of the,official...