Hamilton & Company v Coningham

• Jurisdiction: Ireland
• Judgment Date: 16 April 1903
• Date: 16 April 1903
• Court: Court of Appeal (Ireland)

Hamilton & Co.

and

Coningham (1).

K. B. Div.

Appeal.

(1902. No. 2531.)

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THERE FROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1903.

Pradice — Debtors Act (Ireland), 1872 — Order to pay judgment delt by instal — ments — Default in payment of instalment — Committal order — Officer in the army — Public policy.

A committal order for default in payment of an instalment of a judgment debt ordered to be paid by the judgment debtor by instalments will be granted against the debtor, though he is an officer in the army, and the only income of which he is proved to be in receipt is his pay as such officer.

Adjourned Summons.

Application on behalf of the plaintiffs that the defendant H. J. Coningham be committed to prison for non-payment of the instalments payable under the order of the King's Bench Division, dated 1st November, 1902, by which defendant was ordered to pay to the plaintiffs the sum of £12 12s., being the amount due on foot of the judgment in this action, dated 2nd April, 1902, for principal interest and costs, in the following instalments, viz. a sum of £4 on or before the 1st December, 1902, a like sum of £4 on or before the 1st January, 1903, and the balance, a sum of £4 12s., on or before the 1st February, 1903.

The defendant was duly served with notice of the application on which the above-mentioned order was made, but he did not appear at the hearing of the application. It was proved that he was a captain in the army, unmarried, in receipt of pay to the amount of eleven shillings and sevenpence a day, and that the

debt was the amount of a tailor's bill. The defendant was duly served with a copy of the said instalment order in the military barracks at Birr, but he failed to pay any of the instalments therein mentioned. The plaintiffs took out a summons asking that the C defendant be committed to prison for his default in failing to pay the said instalments. There was no appearance by the defendant on this application, and Mr. Justice Barton adjourned the summons into Court.

W. H. Brown, for the plaintiffs.

Gibson, J.:—

This application for a committal order against a commissioned officer in the army raises some novel and interesting questions. The plaintiff, a tailor, has recovered judgment for £10 3s. and on fi. fa., a return of nulla bona having been made, obtained on November 1, 1902, an instalment order on which nothing has been paid. The defendant, a captain in the Leinster Regiment, has not appeared to give any explanation for his non-compliance with the order. It does not appear from the plaintiffs' affidavit, which is extremely meagre, that defendant has any means outside his military pay.

That the jurisdiction of the Court is not ousted by the defendant's character of officer is unquestionable. An officer has no privilege against civil any more than against criminal process. Long ago the Crown used to grant to individuals engaged on active military service a special limited privilege of protection (3 Christian's Blackstone, 289). The last known instance of this exercise of the Royal prerogative (which it is not easy to reconcile with the provisions of Magna Charta as to delaying justice) occurred in 1692 in a case of Barrudale v. Lord Cutts (1). The plaintiff, also a tailor, sued Lord Cutts while the latter was absent at the war in Flanders, and was proceeding to outlawry against him when the defendant obtained protection under the Great Seal staying the proceedings for a time. There is no trace of suggestion anywhere that an officer enjoyed any privilege by reason

of his military position. Tidd, 8th ed., p. 201, states that the statutes protecting soldiers from arrest, which go back as far as 1 Geo. 2, stat. 2, c. 14, do not extend to commissioned officers. In Arkenheim v. Colegrave (1) and Larchin v. Willin (2) officers were arrested in actions of debt under 1 & 2 Vict. c. 110 when about to leave the kingdom on active service. The omission of officers from the protection given by the Army Act to non-commissioned soldiers is decisive that the former enjoyed no immunity from arrest. As a committal order is in the nature of punishment and is not execution (Re Watson (3)) in any view, it appears certain that it can be made against an officer.

Next: Is the jurisdiction of the Court affected by the circumstance that the officer's sole apparent means of paying the instalment order is his military pay, which on grounds of public policy cannot be directly assigned or dealt with by him? Apart from authority, on principle, I would think that if at the time of application the defendant “has or has had since the date of the judgment or order means” it is quite immaterial from what source the means have been derived, whether from gift or otherwise: Ex parte Koster (4). The money in its origin may...