Feeney, Bank of Ireland d

• Jurisdiction: Ireland
• Judgment Date: 12 March 1930
• Date: 12 March 1930
• Court: High Court (Irish Free State)

Farben-Bloom v. Morel, Ltd.

SAMUEL FARBENBLOOM

Plaintiff

and

LAZARE MOREL (Glasgow), Limited, and LORCAN G. SHERLOCK

Defendants.

Practice - Settlement of action by consent - Plaintiffs' claim to be paid by instalments - Order making consent a rule of Court - Default by defendant in payment of instalments - Right of plaintiff to levy execution - Interest on amount due - Date from which interest runs - 3 & 4 Vict. c. 105, sects. 26, 27 - Rules of the Supreme Court (Ir.), 1905, Or. XLII, rr. 15, 17.

Motion.

Samuel Farbenbloom was the defendant in an action brought in 1929 by Lazare Morel (Glasgow), Ltd., to recover a certain sum. He defended the action and counterclaimed for a larger sum. A consent was entered into, the material terms of which are referred to in the judgment of Johnston J. The consent provided that it was to be made a rule of Court, and this was subsequently done. The consent also provided (inter alia) that a certain sum was to be paid by Farbenbloom to Lazare Morel (Glasgow), Ltd., by instalments, and in the event of these instalments being in arrear the balance then due was immediately to become payable. Default having been made by Farbenbloom in the payment of these instalments, a writ of fi. fa. issued, directing the Sheriff to levy execution upon the goods of Farbenbloom. His goods having been taken in execution, he brought an action against Lazare Morel (Glasgow), Ltd., and the Sheriff claiming an injunction to restrain them from acting under the writ of fi. fa. He then brought the present motion for an interlocutory injunction, and it, by consent, was treated as the trial of the action. The further facts are set out in the judgment of Johnston J.

Plaintiffs brought an action to recover a liquidated sum. Defendant defended the action, and delivered a counterclaim. A consent was entered into between the parties, by which it was provided that all proceedings in the action should be stayed upon certain terms. By these terms the defendant agreed to pay to plaintiffs a certain sum by instalments, and if the instalments should be in arrear for more than seven days, the balance then due should immediately become payable by the defendant. The defendant was to withdraw his counterclaim, and the consent was to be made a rule of Court. An order was subsequently made staying the action on these terms. Default having been made by the defendant in the payment of the instalments, a writ of fi. fa. was issued, directing the Sheriff to levy execution on the goods of the defendant for a certain sum, which included the balance then due and interest thereon at the rate of 4 per cent. per annum from the date of the said order of the Court. The defendant applied for an injunction to restrain the Sheriff from acting under thefi. fa.

Held that the order of the Court was an order for the payment of a sum of money within the meaning of Or. XLII, r. 17, of the Rules of the Supreme Court (Ir.), 1905, and the plaintiff was entitled to sue out a writ of fi. fa. for the enforcement of payment thereof "as soon as the money . . . shall be payable," that was, when default was made by the defendant in the payment of instalments.

Held also that, since the order of the Court was...